Eventually established that as a general rule the offence is cargo. to the booty who effect the capture before the goods reach the enemy; but if the object is that the loss may deter others from attempting the carriage, then even the goods of those who have completed the conveyance may be captured as they return.1 Eventually, however, it became established that, as a general rule, when the hostile destination has been reached and the forbidden merchandise delivered-in technical language, 'deposited '-the liability also is deposited deposited; the vessel, although previously affected by her contents, cannot now be captured, nor can the belligerent touch the proceeds of sale of the contraband cargo on the return voyage.2 As Lord Stowell declared in the Imina,3' the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. Under the present understanding of the law of nations you cannot generally take the proceeds in the return Exception voyage'. But the Anglo-American practice recognizes recognized in Angloan exception to this rule where the outward voyage has American been prosecuted under circumstances aggravated by false practice in case of or simulated papers or other fraud.4 A contraband fraud. 1 Iur. et iud. fec. bk. ii, sec. viii, § 11. In the case of Jurgan v. Logan (1667, 1 Stairs, 477) the Lords of Session were of different opinions whether ships could be seized on the return voyage. In 1672 Sir Robert Wiseman declared that the ship was not liable upon return after the delivery of the contraband goods (Twiss, War, 291). 2 Kleen, Neut. i. 437-40; Desp. D. I. 1273, 1292. In the case of the Allanton (Ath. Jones, 83–7) the Russian Prize Court at Vladivostock claimed the unrestricted right to condemn a vessel which was alleged to have deposited contraband on her outward voyage and was returning with an innocent cargo. But this was reversed by the Supreme Court at Petrograd, which expressly held that the fact that contraband had been carried on a previous voyage did not affect a subsequent lawful one. A quarter of a century before, during war between Peru and Chile in 1879, the German vessel Luxor, after having carried a cargo of arms and ammunition from Monte Video to Valparaiso, was seized in the harbour of Callao in Peru, and condemned by the Peruvian Prize Courts for carrying contraband. But upon the German protest the vessel was released (Opp. I. L. ii. 507; Hansemann, 44). 3 (1800), 3 C. Rob. at p. 168; 1 E. P. C. at p. 290. 4 Opp. I. L. ii. 507; Cob. Cases, ii. 429; Carrington v. Merchants' Insurance Co. (1834), 8 Peters, 495; Scott, 769. cargo, for example, having been taken to Batavia with fraudulent papers and a fraudulent destination to Tranquebar, the return cargo was condemned on the ground that in distant voyages 'the different parts are not to be considered as two voyages, but as one entire transaction, formed upon one original plan, conducted by the same persons, and under one set of instructions, ab ovo usque et ad mala '.1 In a case in which contraband was carried, by means of false documents and suppression, to the Isle of France, whence the vessel went in ballast to Batavia, and subsequently sailed to various ports with more than one cargo before capture took place, it was held that it is by no means necessary that the cargo should have been purchased by the proceeds of the contraband' carried on the outward voyage.2 tion to the Anglo practice. In 1806 Madison declared that the rule that a vessel on Opposia return voyage is liable to capture by the circumstance of her having on the outward voyage conveyed contra- American band articles to an enemy's port' is an interpolation in the law of nations.3 Wheaton also disputes the right to inflict the penalty when the offence no longer continues, arguing that if the offence is to be held to survive after the termination of the actual delictum, it should logically be held to survive indefinitely, and not only for the return voyage.4 Halleck defends the doctrine of the English cases; 5 but Hall calls it 'undoubtedly severe', and says that it does not appear to be a necessary deduction from the general principles governing the forfeiture of contraband cargoes'. The same rule would seem to apply by analogy to cases where the 1 The Nancy (1800), 3 C. Rob. at p.126. 2 The Margaret (1810), 1 Act. 333; 2 E. P. C. 113. 3 Moore, Dig. vii. 748. 4 Int. Law (Atlay's ed. 1904), 679, n. (e). 5 Int. Law, ii. 247-8. 6 I. L. 673; cf. Kent, 363, and n. 2; Taylor, I. L. 743-4; Manning, 390; Cob. Cases, ii. 429; Westlake, I. L. ii. 292. The contraband articles have been deposited at an intermediate port on the outward voyage and before it terminated.1 The British rule is also opposed by the continental writers.2 The Manual of Naval Prize Law required that a commander should detain a vessel returning after having carried contraband with false or simulated papers; 3 and the liability of such a vessel to condemnation was not denied in the British Memorandum submitted to the London Conference. The Spanish Memorandum, however, declared that when once the contraband has been unloaded the responsibilities resulting under international law from its transport are annulled; in the Base de discussion drawn up by the British Government as a basis for the deliberations of the Conference it was stated that the principle appeared to be generally accepted that a vessel may not be captured on the ground that she Capture has carried contraband on a previous occasion if such on return carriage is in point of fact at an end.5 Article 38 of the Declaration accordingly disallowed capture on the return voyage under any circumstances whatever. voyage entirely excluded in the De claration of London. But restored 1914-15. But in the war of 1914-15 Great Britain and her allies have adhered to the former British practice. The Order in war of in Council of August 20, 1914,6 provided that a neutral vessel which succeeded in carrying contraband to the enemy with false papers might be detained for having carried such contraband if she was encountered before she completed her return voyage. In the later Order in Council of October 297 this has been altered into the 1 Cf. Moore, Dig. vii. 745. 3 § 80 (pp. 23-4). 5 Ibid. 73; Hansemann, 59. 2 Cf. Hansemann, 47-8. 6 M. E. L. 144; Stat. R. and O. No. 1260; infra, App. B, p. 282. 7 M. E. L. Sup. No. 2, 79; Stat. R. and O. No. 1614; infra, App. B, p. 284. As to the adoption of the rule by France, Russia, and Italy, see M. E. L. Sup. No. 2, 78, n. (a); L. G. May 11, 1915 (Russian decree of December 8/21, 1914, sec. 2; L. G. July 6, 1915 (Italian royal decree of June 3, 1915, art. 2). provision that'a neutral vessel, with papers indicating a neutral destination, which, notwithstanding the destination shown on the papers, proceeds to an enemy port, shall be liable to capture and condemnation if she is encountered before the end of her next voyage'. Article 40 of the German Prize Regulation of April 18, 1915,1 provides that a vessel cannot be held up on the ground of the transport of contraband which occurred previously and is now completed. Should the vessel, however, have carried contraband to the enemy in contravention of the statements made in the ship's papers, she is then liable to be held up and confiscated until the termination of the war. L. G. May 11, 1915; Hub. and King, 29–30. APPENDIX A THE DECLARATION OF LONDON WITH THE GENERAL REPORT OF THE DRAFTING Chapter II CONTRABAND OF WAR THIS chapter is one of the most, if not the most, important of the Declaration. It deals with a matter which has sometimes given rise to serious disputes between belligerents and neutrals. Therefore regulations to establish exactly the rights and duties of each have often been urgently called for. Peaceful trade may be grateful for the precision with which a subject of the highest importance to its interests is now for the first time treated. The notion of contraband of war connotes two elements : it concerns objects of a certain kind and with a certain destination. Cannons, for instance, are carried in a neutral vessel. Are they contraband? That depends: if they are destined for a neutral Government,-no; if they are destined for an enemy Government,-yes. The trade in certain articles is by no means generally forbidden during war; it is the trade with the enemy in these articles which is illicit, and against which the belligerent to whose detriment it is carried on may protect himself by the measures allowed by international law. Articles 22 and 24 enumerate the articles which may be contraband of war, and which are so in fact when they have a certain destination laid down in Articles 30 and 33. The traditional distinction between absolute and conditional contraband is maintained: Articles 22 and 30 refer to the former, and Articles 24 and 33 to the latter. Article 22 The following articles may, without notice,1 be treated as contraband of war, under the name of absolute contraband :— 1. Arms of all kinds, including arms for sporting purposes, and their distinctive component parts. 1 In view of the difficulty of finding an exact equivalent in English for the expression de plein droit, it has been decided to translate it |