powers would in reaching such an agreement give due weight to their interests both as possible belligerents and as possible neutrals. The placing in a specific free list of certain articles, such as raw cotton, of which a small amount might be used in the manufacture of explosives or for other uses in war, removes the source of great possible disturbances to legitimate trade.

LIABILITY OF CONTRABAND TO SEIZURE.

188. Outside of neutral waters

(a) Absolute contraband is liable to seizure, if destined to belligerent territory or to belligerent use.

(b) Conditional contraband is liable to seizure, if destined for the military or naval forces of the enemy, or to the authorities of an enemy state, and on board a vessel bound for such destination.

Any act of war, like the seizure of contraband, would be prohibited in neutral waters. Outside of neutral waters, contraband having an enemy destination is liable to seizure under the neutral flag, which would in ordinary conditions be an evidence of neutral jurisdiction. It was considered that the sale and carriage of war material between neutrals, even in the time of war, was an entirely innocent transaction. That destination was an essential fact in making goods of the nature of contraband liable to seizure was early recognized in practice, treaties, proclamations, etc. A provision in regard to hostile destination was inserted in a treaty between Great Britain and France in 1303, and earlier records show that the destination was as important as the nature of the goods. As was said in a decision of the United States Supreme Court in 1816 in regard to a cargo of provisions: "By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war or on account of their destination. If destined for the ordinary use of life in the enemy's country, they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband."

The Commercen, 1 Wheat. 382, 4 L. Ed. 116.

Therefore the destination becomes a deciding factor in determining whether the whole or a part of a cargo on a neutral vessel may be seized. The destination to justify seizure must be such as would be a direct aid to the enemy in prosecuting

war.

In general, it was held that there would be sufficient evidence that arms or other absolute contraband bound for the territory of an enemy would directly aid the enemy and that they should therefore be liable to seizure.10

While in case of provisions or other conditional contraband, which are of use alike to the population at large of the enemy's country and to the military forces, the destination for military use must be established in order to render them liable to seizure.11

The Declaration of London, 1909, endeavored to make more definite the regulations relating to destination.

(a) This Declaration (article 30) makes absolute contraband liable to seizure if it is shown to have a final destination to the territory of the enemy or to his armed forces. This liability exists, regardless of the destination of the vessel upon which the absolute contraband may be found.

(b) By this Declaration conditional contraband is liable to capture, if destined for the armed forces or for a government department of the enemy state, unless the circumstances show that goods destined for a government department of an enemy state cannot be used for the purposes of the war in progress. This exception was introduced to provide for cases where a war is localized. As is said in the report of the International Naval Conference: "For instance, there is a war in Europe, and the colonies of the belligerent countries are not in fact, affected by it. Foodstuffs or other articles in the list of conditional contraband, destined for the use of the civil government of a colony, would not be held to be contraband of war, because the considerations adduced above do not apply to their case. The resources of the civil government cannot be drawn on for the needs of the war. Gold, silver, or paper money

10 The Santissima Trinidad, 7 Wheat. 283, 5 L. Ed. 454. 11 The Commercen, 1 Wheat. 382, 4 L. Ed. 116.

are exceptions, because a sum of money can easily be sent from one end of the world to the other." 12

Conditional contraband, bound to be discharged in a neutral port, whatever its ultimate destination, is not liable to capture according to the Declaration of London, except in the rare case, when conditional contraband is bound to be discharged at a neutral port with the intent to transport it thence to a belligerent state which has no seaboard. Such a case arose during the South African War in 1900, when vessels carried contraband to the neutral Portuguese port of Lorenzo Marques in Delagoa Bay, thence to be transported overland to the South African forces.18

PENALTY FOR CARRYING CONTRABAND.

189. While, in general, contraband is liable to condemnation, the further penalty for the carriage of contraband depends upon the relation of the carrier to the contraband.

(a) The penalties have not been the same in different states. The Anglo-American rules were in general that: (1) When the vessel and contraband belonged to different owners, the vessel was liable to loss of freight upon the contraband cargo and to loss of time and expenses during adjudication.

(2) When vessel and contraband cargo belonged to the same owner, both might be forfeited.

(3) When a part of the vessel belonged to the owner of the contraband cargo, that part might be condemned.

(4) Noncontraband goods belonging to the owner of the contraband might be condemned.

(5) Fraudulent or other irregular acts might make a vessel carrying contraband liable to penalty.

(b) The Declaration of London in 1909 provided that: (1) When the cargo, reckoned either by value, weight, volume, or freight, forms more than half, the vessel may be condemned.

(2) When a vessel carrying contraband is released, she may be condemned to pay costs of prize court proceedings incurred by captor.

12 British Parliamentary Papers, Miscellaneous, No. 4 (1909), p. 48. 18 Id., Africa, No. 1 (1900).

(3) Other goods on board belonging to the owner of the contraband may be condemned.

(4) When a vessel carrying contraband is unaware of the existence of hostilities, or has not since the outbreak of hostilities had opportunity to discharge contraband, the contraband is liable to condemnation only on payment of compensation.

(5) When the proportion of contraband on a vessel is less than one-half her cargo, she may, when circumstances permit, be allowed to continue her voyage, if the master is willing to hand over the contraband to the belligerent war ship.

The carriage of contraband is not forbidden by international law. Belligerents are, however, permitted by international law to inflict penalties upon neutrals who engage in such commerce as has been prohibited.

The liability to capture begins when a vessel carrying contraband leaves neutral waters, and continues till the contraband is delivered. Liability is sometimes held to continue to the completion of the return voyage, in case of fraud on the outward voyage.11

Formerly contraband trade was penalized by forfeiture of the vessel and cargo.15 The carrier is now generally allowed to prove his innocence.

(a) Anglo-American doctrine was to the effect that:

(1) The penalty which in general deters neutral carriers is the loss of freight and the liability to detention.16

(2) When the vessel and contraband cargo belong to the same person, the ship and cargo are joined in the transaction, the owner cannot plead ignorance, and both ship and cargo are liable to condemnation.

(3) "Where the owner of the cargo has any interest in the ship, the whole of his property will be involved in the same sentence of condemnation; for, where a man is concerned in an illegal transaction, the whole of his property embarked in that transaction is liable to confiscation." 17

14 The Lucy, 37 Ct. Cl. 97.

15 The Med Guds Hielpe, Pratt, Contraband of War, p. 191a. 16 The Ringende Jacob, 1 C. Rob. 89.

17 The Jange Tobias, 1 C. Rob. 329.

WILS. INT.L.-28

(4) The principle which applies to the situation when the owner of the contraband cargo is also owner of the vessel applies when the owner of the contraband cargo is also owner of noncontraband cargo. The noncontraband cargo is liable to be condemned. It is difficult to reconcile the principle that, "to escape from the contagion of contraband, the innocent articles must be property of a different owner," 18 with the Declaration of Paris, of 1856.

(5) The penalty for fraudulent or other irregular acts in connection with the carriage of contraband may extend to the condemnation of the vessel,1o or to lesser punishment of fine.20

(b) The Declaration of London, of 1909, while making certain new rules, and reconciling certain differences among maritime states, also revived certain earlier practices, which were found to be consistent with the best interests of belligerents and neutrals.

(1) As a general principle the neutral carrier of contraband is liable to the delay and inconvenience in bringing the contraband cargo before a prize court, and liable to the loss of freight upon the contraband. Experience has shown that, while this may be a sufficient penalty in cases where the contraband carried is of relatively small amount and shipped in the regular course of trade, there may be cases where the carrier of the contraband should be more severely penalized, particularly in cases where the carriage of contraband is not simply an incident in the undertaking, but the main object of a voyage. Opinions differed as to the method of determining what should constitute sufficient evidence to render the carrier liable to a severe penalty. The report of the London Naval Conference says: "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

18 The Staadt Embden, 1 C. Rob. 26.

19 The Franklin, 3 C. Rob. 217.

20 The Peterhoff, 5 Wall. 28, 18 L. Ed. 564.