(_b_) =The ownership of goods= has usually been a fact determining their liability to capture.
The rules of the _Consolato del Mare_, compiled in the thirteenth or fourteenth century, looked to the protection of the neutral vessel and the neutral goods on the one hand, and to the seizure of the enemy vessel and of the enemy goods on the other hand. The goods of an enemy could be seized under a neutral flag, and the goods of a neutral were free even though under an enemy flag. This doctrine considered mainly the character of the goods. These rules were held in favor till the sixteenth century, from which time the practice varied greatly, sometimes being regulated by treaty. In the sixteenth century France advanced the doctrine of _hostile contagion_, maintaining the principle of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The practice of states was far from uniform in the various wars.
(_c_) =The nationality of the vessel= has been sometimes regarded as the sole fact determining liability of goods to capture, and at other times affecting only the vessel itself.
Under the rules of the _Consolato_, the flag determined the liability of the vessel only. Under the French ordinances, the flag contaminated the goods. From 1778, the doctrine that the neutral flag covered enemy goods became more commonly accepted. This was especially emphasized by the armed neutrality of 1780.
Some of the agreements of the United States will show the variety of practice even in recent times. By Art. XXIII. of the Treaty of 1778 with France it is provided, "that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted." In the Treaty of 1785 with Prussia occurs the following: "free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." In the Treaty of 1795 with Spain is a similar provision, excepting, however, contraband of war. It is a.s.serted in the Treaty of 1799 with Prussia that as the doctrine of "free ships make free goods" has not been respected "during the two last wars," and in the one "which still continues," the contracting parties propose "after the return of a general peace" to confer with other nations and meantime to observe "the principles and rules of the law of nations generally acknowledged." The Treaty of 1819 with Spain interprets the clause of the Treaty of 1795, in which it is stipulated that the flag shall cover the property, by saying, "that this shall be so understood with respect to those Powers who recognize this principle; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledges this principle, and not of others." The Treaty of 1794 with Great Britain expressly provides that property of an enemy on a neutral vessel shall be good prize. In 1887 it was agreed in the treaty with Peru "that the stipulation in this article declaring that the flag shall cover the property shall be understood as applying to those nations only who recognize this principle; but if either of the contracting parties shall be at war with a third, and the other shall remain neutral, the flag of the neutral shall cover the property of enemies whose Governments acknowledge this principle, and not that of others."[435] In spite of these variations, the practice of the United States has been much more uniform than that of the states in which the foreign relations have exercised a more direct influence.
(_d_) Since 1856 the principles enunciated in the =Declaration of Paris= have generally prevailed. The provisions in regard to the flag and goods are:--
"2. The neutral flag covers enemy"s goods, with the exception of contraband of war.
"3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy"s flag."[436]
This agreement bound only those states which signed it. A few states, including the United States, Spain, Mexico, Venezuela, and China, did not accede to these provisions. The United States declined because the government desired a provision exempting all private property at sea from capture.[437] In the War of 1898, the United States announced that the rules of the Declaration of Paris would be observed, and Spain made a similar announcement except as to the clause in regard to privateering.[438] Spain did not, however, make use of privateers. The goods of a neutral embarked in a belligerent carrying vessel are liable to the damages or destruction which may be the consequence of necessary acts of war. Destruction not the result of such necessary acts would be in violation of the spirit of the Declaration of Paris, and the neutral might justly demand reparation.
The rules of the Declaration of Paris have been so generally accepted in practice that there is little possibility that they will be disregarded by the civilized states of the world.
-- 131. Contraband
Contraband is the term applied to those articles which from their usefulness in war a neutral cannot transport without risk of seizure.
While a state is under obligation to prevent the fitting out of hostile expeditions and to refrain from furnishing belligerent ships warlike material, a state is not bound to prevent the traffic of its citizens or subjects in contraband of war. Such articles as are contraband may be seized on the high seas,[439] and by the Declaration of Paris are not protected by the neutral flag.[440]
Of the articles of commerce themselves, Grotius makes three general cla.s.ses:--
"1. Those which have their sole use in war, such as arms."
"2. Those which have no use in war, as articles of luxury."
"3. Those which have use both in war and out of war, as money, provisions, ships, and those things appertaining to ships."[441]
Grotius regards articles of the first cla.s.s as hostile, of the second as not a matter of complaint, and of the third as of ambiguous use (_usus ancipitis_), of which the treatment is to be determined by their relation to the war.
While the general principle may be clear, the application of the principle is not simple. Those articles whose sole use is in war are, without question, contraband. Articles exclusively for peaceful use are not contraband. Between these two cla.s.ses are many articles in regard to which both practice and theory have varied most widely.[442] The theorists have usually endeavored to give the neutral the largest possible liberty in commerce, on the ground that those who were not parties to the war should not bear its burdens. This has been the opinion most approved by the jurists of Continental Europe. Great Britain and the United States have been inclined to extend the range of articles which might on occasion be cla.s.sed as contraband.
The att.i.tude of the United States may be seen from the following enumeration of articles, which is practically the same as was declared contraband in the Spanish War of 1898:--
"+Absolutely Contraband.+--Ordnance; machine guns and their appliances and the parts thereof; armor plate and whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, bra.s.s, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses and mules."
"+Conditionally Contraband.+--Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs; and money; when such materials or money are destined for the enemy"s forces; provisions, when actually destined for the enemy"s military or naval forces."[443]
The range of articles cla.s.sed as contraband will naturally vary from time to time as changes in the method of carrying on war occur. Horses have usually been regarded as contraband by France, England, and the United States, except in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.[444] In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general cla.s.ses. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity to seize and confiscate it as it pa.s.sed through the Straits of Gibraltar. But upon the request of the Italian government it ... refrained from treating sulphur as contraband."[445]
-- 132. Penalty for Carrying Contraband
No penalty attaches to the simple act of transportation of contraband.
It is the hostile destination of the goods that renders them liable to penalty and the vessel liable to delay or other consequences according to circ.u.mstances.
The general rules are as follows:--
1. When the ship and the contraband cargo belong to the same owner, both are liable to be condemned.
2. When the ship and the contraband cargo belong to different owners, the cargo only is liable to be condemned.
3. When the owner of the cargo is also part owner of the ship, it has been held that his part of the ship is also liable to be condemned.[446]
4. When non-contraband goods on the ship belong to the same owner with the contraband goods, it has been held that these goods are also liable to be condemned. "To escape from the contagion of contraband, the innocent articles must be the property of a different owner."[447]
5. A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination.
6. In certain instances, vessels have been held liable to condemnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden.
As Perels maintains, it is difficult to see how the fourth rule can be enforced consistently with the Declaration of Paris, by which they would be exempt even if belonging to the enemy.[448]
The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail.
Under special circ.u.mstances goods have been treated as liable to preemption instead of absolute seizure. Of this Hall says, "In strictness every article which is either necessarily contraband, or which has become so from the special circ.u.mstances of war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter cla.s.s to preemption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount."[449] This practice is not viewed with favor upon the Continent as indicating a departure from the generally accepted practice.[450]
-- 133. Unneutral Service
Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a partic.i.p.ation in the contest. Such service involves a.s.sistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service.
The acts generally regarded as in the category of unneutral service are:--
1. The carriage of enemy dispatches.
2. The carriage of certain belligerent persons.
3. Aid by auxiliary coal, repair, supply, or transport ships.
4. Knowing cooperation in the transmission of certain messages and information to the belligerent.
(1) Of the _carriage of dispatches_, in the case of the _Atalanta_, Lord Stowell said:--
"How is the intercourse between the mother country and the colonies kept up in the time of peace? By ships of war or by packets in the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state."[451]
"A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service, in which case the mail bags must be forwarded with seals unbroken."[452]
Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief.
(2) The limitation in regard to the _carriage of certain belligerent persons_ applies to those who travel in such manner as to make it evident that they travel in the military or naval service of the belligerent state. If the carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service.[453] The neutral carrier engaged in ordinary service is not obliged to investigate the character of persons who take pa.s.sage in the usual way. The case of the _Trent_ had no particular bearing upon this subject, as it merely emphasized an already settled principle "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons."[454]
(3) _Auxiliary coal, repair, supply, or transport ships_, as, directly in the service of the belligerent, have an undoubted hostile character.[455]
(4) Knowing cooperation in the _transmission of certain messages_ for the belligerent renders the ship liable to penalty. Such an act as the repet.i.tion of signals would fall in this cla.s.s. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes. A neutral vessel engaged in the laying, cutting, or repair of war telegraph cables is held to be performing unneutral service.