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TREATMENT OF VESSEL CARRYING CONTRABAND IF SHE SURRENDERS CONTRABAND TO
BELLIGERENT WAR-SHIP_RIGHTS AND DUTIES OF MASTER AND CAPTOR.
A vessel which has been stopped on the ground that she is
carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the
contraband to the belligerent warship. The delivery of the contraband must be entered by the captor
on the log book of the vessel stopped, and the master must
give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has
been handed over to him under these conditions.- Derleration of London, Article 44.
A neutral vessel is stopped for carrying contraband. She is not liable to condemnation, because the contraband does not reach the proportion specified in article 10. She can, nevertheless, be taken to a prize port for judgment to be passed on the contraband. This right of the captor appears too wide in certain cases, if the importance of the contraband, possibly slight (for instance, a case of guns or revolvers), is compared with the heavy loss incurred by the vessel by being thus turned out of her course and detained during the time taken up by the proceedings. The question has, therefore, been asked whether the right of the neutral vessel to continue her voyage might not be admitted if the contraband articles were handed over to the captor, who, on his part, might only refuse to receive them for sufficient reasons, for instance, the rough state of the sea, which would make transshipment difficult or impossible, well-founded suspicions as to the amount of contraband which the merchant vessel is really carrying, the difficulty of stowing the articles on board the warship. etc.. This proposal did not gain sufficient support. It was alleged to be impossible to impose such an obligation on the cruiser, for which this handing over of goods would almost always have drawbacks. If, by chance, it has none, the cruiser will not refuse it. because she herself will gain by not being turned out of her course by having to take the vessel to a port. The idea of an obligation haring thus been excluded, it was decided to provide for the voluntary handing over of the contraband, which, it is hoped, will be carried out whenever possible, to the great advantage of both parties. The formalities provided for are very simple and need no explanation.
There must be a judgment of a prize court as regards the goods thus handed over. For this purpose the captor must be furnished with the necessary papers. It may be supposed that there might be doubt as to the character of certain articles which cruiser claims as contraband; the master of the merchant vessel contests this claim, but
prefers to deliver them up so as to be at liberty to continue his voyage. This is merely a capture which has to be confirmed by the prize
court. The contraband delivered up by the merchant vessel may hamper the cruiser, which must be left free to destroy it at the moment of handing over, or later.
Report of committee which drafted Declaration of London. And in case the contraband merchandize be only a part of the cargo, and the master of the vessel agrees, consents, and offers to deliver them to the vessel that has discovered them, in that case the latter, after receiving the merchandizes which are good prize, shall immediately let the vessel go, and shall not by any means hinder her from pursuing her voyage to the place of her destination.
Treaty of Amity and Commerce concluded between the United States and
Sweden, April 3, 1783, Article XIII. But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.
Treaty of Amity and Commerce concluded between the United States and
Prussia, July 11, 1799, Article XIII. No ressel of either of the two nations shall be detained on the ligh seas on account of having on board articles of contraband, whenever the master, captain or supercargo of said vessels will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great and of so large a bulk that they cannot be received on board the capturing ship without great inconvenience.
Treaty of Peace. Amity, Navigation, and Commerce concluded between the
United States and New Granada (Colombia), December 12, 1846. Article
XIX. No vessel of either of the two nations shall be detained on the high seas on account of having on board articles of contraband, whenever the master, captain or supercargo of said vessel will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great or of so large a bulk that they cannot be received on board the capturing ship without great inconvenience
Treaty of Peace, Friendship, Commerce, and Navigation concluded between
the United States and Bolivia, May 13, 1858, Article XX. The vessel which has been stopped because it carries contraband of war may continue its voyage if its cargo is not composed exclusively or principally of contraband of war, if the master is ready to deliver to the belligerent vessel the contraband of war, and if the cominander of the cruiser believes that the unloading may take place without difficulty.
Institute, 1882, p. 52. Contra, to some extent.
It is for the interest of the neutral carrier, if he knows that the gooils claimed by the visiting cruiser are contraban:), to give them up, and be permitted to go on his way, rather than to be carried into the belligerent's port to a wait adjudication upon them. In the seventeenth article of the treaty of 1800 between the United States and France, which expired in 1808, there is a provision, that, if the vessel boarded shall have contraband goods, and shall be willing to surrender them to the cruiser, she shall be permitted to pursue her voyage, unless the cruiser is unable to take them on board, in which case the vessel shall accompany her to port. This stipulation is common in the treaties between the United States and the uther unerican republics. Hautefeuille contends for this as il liglut of a lieutral by international law; by which, however, le means that it should be the neutral's right, by justice and reason, in the lithor's opinion. No national act in diplomacy, or based on adjudication, and independent of treaty, has been produced or suggested by the distinguished author, in affirmance of such a right. It is to be observed, that, as the captor must still take the cargo into port, and submi: it to adjudication, and as the neutral carrier cannot bind the owner of the supposed contraband cargo not to claim it in court, che captor is entitled, for his protection, to the usual evidence of the ship's papers, and whatever other evidence induced him to make the capturi, its well as to the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all these papers, and deliver them to the captor; and certainly the testimony of the persons on board cannot be taken at sea in the manner required by law. Such a provision may be applicable to a case where the owner of the goods, or a person capable of binding him, is on board, and assents to the arrangement, agreeing not to claim the goods in court; but not to a case where the owner is not bound. There may also be a doubt whether the ostensible owner or agent is really such: and so the captor may be misled. Indeed, a strong argument inight be made from these considerations, that the article in the treaty can only be applied to a case where there is the capacity in ihe neutral vessel to insure the captor against a claim on the goods.
Dana's Wheaton, Note 230.
Contra, to some extent.
Some writers consider that the neutral vessel has even : right to purchase the free continuance of her voyage at the price of abandoning to the belligerent whatever contraband goods she has on board. unless their quantity is so great that the captor cannot receive them. The existence of any such general right would be ditticult to prove: but a large number of treaties have established the practice between certain nations; and it was followed by the Confederate States during the American Civil War. It can scarcely be believed however that its vitality could stand the rude test of a serious maritime war.
Hall, pp. 692.
Hitherto the practice of the several States has Tiffered with regard to the question as to whether a l'éssel which was not herself liable to condemnation might be allowed to proceed on her voyage on condition that she handed over the contraband carried by her to the captor. Great Britain and some other States answered it in the negative, but several States in the affirmative.
Oppenheim, vol. 2, p. 513.
The Commander will not be justified in taking out of a vessel any Contraband Goods he may have found on board, and then allowing the vessel to proceed; his duty is to detain the Vessel, and send her in for Adjudication, together with the Contraband Goods on board.
Holland, p. 24. In cases where the contraband of war is alone liable to confiscation, and not the vessels carrying it
*, the vessel herself is to be detained only until the contraband has been handed over. The delivery may take place, at the discretion of the Commander making the seizure, either on the spot where the seizure takes place, or after the captured ship has been brought into port.
Russian Regulations, 189.), Article 14.
The captain can abstain from the seizure of a ship carrying contraband which is not herself liable to confiscation under 11, 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.
German Prize Rules, 1909, Article 16. Sections 51 and 52, French Naval Instructions, 1912, are substantially identical with Article 44, Declaration of London.
Article 44, Declaration of London, is substantially identical with section 24, Austro-Hungarian Manual, 1913.
(ONDEMNATION OF NEUTRAL VESSEL AND GOODS OF OWNER FOR SPECIFIED UXXEUTRAL
SERVICE-EXCEPTION IN CASE OF LACK OF KNOWLEDGE OF HOSTILITIES OR LACK OF OPPORTUNITY, AFTER KNOWLEDGE, TO DISCHARGE BELLIGERENT PASSENGERS WHEN KNOWLEDGE PRESUMED,
A neutral vessel will be condemned and will, in a general
way, receive the same treatment as a neutral vessel liable to condemnation for carriage of contraband:(1) If she is on a voyage specially undertaken with a view
to the transport of individual passengers who are embodied in the armed forces of the enemy, or with a view to the transmission of intelligence in the interest of the
enemy. (2) If, to the knowledge of either the owner, the charterer,
or the master, she is transporting a military detachment of the enemy, or one or more persons who, in the course
of the voyage, directly assist the operations of the enemy. In the cases specified under the above heads, goods belonging
to the owner of the vessel are likewise liable to condemna
tion. The provisions of the present Article do not apply if the
vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers. The vessel is deemed to be aware of the existence of a state of war if she left an enemy port subsequently to the outbreak of hostilities, or a neutral port subsequently to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.Declaration of London, Article 45.
In a general way, it may be said that the merchant vessel which violates neutrality, whether by carrying contraband of war or by breaking blockade, a ffords aid to the enemy, and it is on this ground that the belligerent whom she injures by her acts is justified in inflicting on her certain losses. But there are cases where such unneutral service bears a particularly distinctive character, and for such cases it has been thought necessary to make special provision. They have been divided into two classes according to the gravity of the act of which the neutral vessel is accused.
In the cases included in the first class (art. 45), the vessel is condemned, and receives the treatment of a vessel subject to condemnation for carrying contraband. This means that the vessel does not