I am, Sir, your obedient servant, T. E. HOLLAND.
P.S.--It may be worth while to add, for the benefit of those only who care to be provided with a clue (not to be found in the judgment) through the somewhat labyrinthine details of the question under discussion, a summary of its history. The Russian rules as to contraband are contained in several doc.u.ments--viz. the "Regulations as to Naval Prize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts.
97, 98, and the appended "Special Declaration" as to the articles considered to be contraband (partly modelled on the list of 1877); the "Imperial Order" of February 28, 1904, rule 6 (this Order keeps alive the rules of 1895 and 1900, except in so far as they are varied by it); the "Order" of March 19, 1904, defining "food" and bringing machinery of certain kinds into the list of contraband; the "Order," of April 21, 1904, bringing "raw cotton" into the list; and, lastly, the "Instructions" of September 30 and October 28, 1904, recognising, in effect, a cla.s.s of "conditional" contraband, placing foodstuffs in this cla.s.s, as also, ultimately, other objects "capable of warlike use and not specified in sections 1-9 of rule 6."
T. E. H.
Temple, July 1 (1905).
COTTON AS CONTRABAND
Sir,--Your correspondent "Judex" will rejoice, as I do, that cotton has now been declared to be "absolute contraband." May I, however, suggest that the topic should be discussed without any reference to the fortunately unratified Declaration of London, that premature attempt to codify the law of maritime warfare, claiming, misleadingly, that its rules "correspond in substance with the generally recognised principles of international law"?
It is surely regrettable that, by the Order in Council of August 20, 1914, our Government adopted the provisions of the Declaration "during the present hostilities," and "subject to various additions and modifications," the list of which has since been considerably extended.
This half-hearted course of action painfully recalls certain vicious methods of legislation by reference, and was additionally uncalled for, since, as has been shown by recent events, about two-thirds of the rules laid down by the Declaration are inapplicable to modern warfare.
The straightforward announcement made by the United States in their Note of January 25 is surely far preferable. It states in plain terms that, "As the Declaration of London is not in force, the rules of international law only apply. As to articles to be regarded as contraband there is no general agreement between nations." In point of fact, the hard-and-fast categories of neutral imports, suggested by the threefold Grotian division, as set forth in the Declaration, are unlikely ever to be generally accepted. Even Grotius is careful to limit his proposals, and Bynkershoek, in commenting upon them, points out that the test of contraband of the most noxious kind must be the, possibly exceptional, importance of objects for hostile use; their being of use also for non-hostile purposes being immaterial ("nec interesse an et extra bellum usum praebeant"). The application of these remarks to the case of cotton is sufficiently obvious.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, August 23 (1915).
j.a.pANESE PRIZE LAW
Sir,--I hope you will allow me s.p.a.ce for a few words with reference to some statements occurring to-day in your Marine Insurance news which I venture to think are of a misleading character.
Your Correspondent observes that--
"Although the j.a.panese are signatories to the Treaty of Paris, it should not be forgotten that they haw a Prize Court Law of their own (August 20, 1894), and are more likely to follow its provisions, in dealing with the various captured steamers, than the general principles of the Treaty of Paris."
Upon this paragraph let me remark:--
1. The action of the j.a.panese is in full accordance with the letter and spirit of all four articles of the Declaration of Paris. ("The Treaty of Paris" has, of course, no bearing upon prize law.)
2. "The general principles" of that Declaration is a phrase which conveys to me, I confess, no meaning.
3. The j.a.panese have, of course, a prize law of their own, borrowed, for the most part, from our own Admiralty Manual of Prize Law. Neither the British nor the j.a.panese instructions are in conflict with, or indeed stand in any relation to, the Declaration of Paris.
4. The existing prize law of j.a.pan was promulgated on March 7, 1904, not on August 20, 1894.
Your Correspondent goes on to say that the j.a.panese definition of contraband "is almost as sweeping as was the Russian definition, to which the British Government took active objection last summer." So far is this from being the case that the j.a.panese list is practically the same as our own, both systems recognising the distinction between "absolute" and "conditional" contraband, which, till the other day, was ignored by Russia.
The j.a.panese rules as to the cases in which ships carrying contraband may be confiscated are quite reasonable and in accordance with British views. The third ground for confiscation mentioned by your Correspondent does not occur in the instructions of 1904.
Ships violating a blockade are, of course, confiscable; but the j.a.panese do not, as your Correspondent seems to have been informed, make the existence of a blockade conditional upon its having been "notified to the Consuls of all States in the blockaded port." Commanders are, no doubt, instructed to notify the fact, "as far as possible, to the competent authorities and the Consuls of the neutral Powers within the circ.u.mference of the blockade"; but that is a very different thing.
I am, Sir, your obedient servant, T. E. HOLLAND.
The Athenaeum, March 10 (1905).
j.a.pANESE PRIZE LAW
Sir,--Let me a.s.sure your correspondent upon Marine Insurance that I have been familiar, ever since its promulgation, with the j.a.panese prize law of 1894, quoted by him as authority for statements made in your issue of March 10, the misleading character of which I felt bound to point out in a letter of the same date. All the topics mentioned by him on that occasion, and to-day, are, however, regulated, not by that law, but by notifications and instructions issued from time to time during 1904.
I make it my business not only to be authoritatively informed on such matters, but also to see that my information is up to date.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, March 15 (1905).
_(Continuous Voyages)_
The opinion expressed in the letter which immediately follows, that the American decisions, applying to carriage of contraband the doctrine of "continuous voyages," seem to be "demanded by the conditions of modern commerce, and might well be followed by a British prize Court," was referred to by Lord Salisbury in a despatch of January 10, 1900, to be communicated to Count von Bulow, with reference to the seizure of _Bundesrath_. _Parl.
Papers_, Africa, No. 1 (1900), p. 19.
The distinction, drawn in the same letter, between "carriage of contraband" and "enemy service," which has sometimes been lost sight of, was established in the case of _Yangtsze Insurance a.s.sociation_ v. _Indemnity Mutual Marine Company_, [1908] K.B.
910, in which it was held by Bigham, J., that the transport of military officers of a belligerent State, as pa.s.sengers in a neutral ship, is not a breach or a warranty against contraband of war in a policy of marine insurance. The carriage of enemy despatches will no longer be generally treated as "enemy service" since The Hague Convention, No. xi. of 1907, ratified by most of the Powers, including Great Britain, on November 27, 1909, by Art. 1 provides that, except in the case of breach of blockade, "the postal correspondence of neutrals or _belligerents_, whether of _an official_ or a private character, found on board a _neutral_ or enemy ship on the High Seas is inviolable."
The case of the _Allanton_, which gave occasion for the letter of July 11, 1904, was as follows. This British ship left Cardiff on February 24 of that year, with a cargo of coal to be delivered either at Hong-Kong or Sasebo. On arrival at Hong-Kong, she found orders to deliver at Sasebo, and, having made delivery accordingly, was chartered by a j.a.panese company at another j.a.panese port, to carry coal to a British firm at Singapore. On her way thither, she was captured by a Russian squadron and taken in to Vladivostok, where on June 24 she was condemned by the prize Court for carriage of contraband. The Court held, ignoring the rule that a vessel ceases to be _in dilecto_ when she has "deposited" her contraband (since affirmed by Art. 38 of the Declaration of London of 1909), that she was liable in respect of her voyage to Sasebo; as also in respect of the voyage on which she was captured, on the ground that her real destination was at that time the j.a.panese fleet, or some j.a.panese port. This decision was reversed, as to both ship and cargo, by the Court of Appeal at St. Petersburg, on October 22 of the same year.
The doctrine of "continuous voyages" was by the Declaration of London, Art. 30, recognised in the case of "absolute," but by Art. 35 was stated to be inapplicable to the case of "conditional" contraband.
PRIZE LAW
Sir,--Questions of maritime international law which are likely to give rise not only to forensic argument in the prize Courts which we have established at Durban and at the Cape, but also to diplomatic communications between Great Britain and neutral Governments, should obviously be handled just now with a large measure of reserve. Lord Rosebery has, however, in your columns called upon our Government to define its policy with reference to foodstuffs as contraband of war, while several other correspondents have touched upon, cognate topics.
You may perhaps therefore be disposed to allow one who is responsible for the _Admiralty Manual of the Law of Prize_, to which reference has been made by your correspondent "S.," to make a few statements as to points upon which it may be desirable for the general reader to be in possession of information accurate, one may venture to hope, as far as it goes.
Of the four inconveniences to which neutral trading vessels are liable in time of war, "blockade" may be left out of present consideration. You can only blockade the ports of your enemy, and the South African Republics have no port of their own. The three other inconveniences must, however, all be endured--viz. prohibition to carry "contraband,"
prohibition to engage in "enemy service," and liability to be "visited and searched" anywhere except within three miles of a neutral coast, in order that it may be ascertained whether they are disregarding either of these prohibitions, as to the meaning of which some explanation may not be superfluous.
1. "Carriage of contraband" implies (1) that the goods carried are fit for hostile use; (2) that they are on their way to a hostile destination. Each of these requirements has given rise to wide divergence of views and to a considerable literature. As to (1), while Continental opinion and practice favour a hard-and-fast list of contraband articles, comprising only such as are already suited, or can readily be adapted, for use in operations of war, English and American opinion and practice favour a longer list, and one capable of being from time to time extended to meet the special exigencies of the war. In such a list may figure even provisions, "under circ.u.mstances arising out of the particular situation of the war," especially if "going with a highly probable destination to military use"--Lord Stowell in the _Jonge Margaretha_ (1 Rob. 188); _cf._ Story, J., in the _Commercen_ (1 Wheat.
382), the date and purport of which are, by the by, incorrectly given by "S." It would be in accordance with our own previous practice and with Lord Granville"s despatches during the war between France and China in 1885, if we treated flour as contraband only when ear-marked as destined for the use of enemy fleets, armies, or fortresses. Even in such cases our practice has been not to confiscate the cargo, but merely to exercise over it a right of "pre-emption," so as to deprive the enemy of its use without doing more injury than can be helped to neutral trade--as is explained by Lord Stowell in the _Haabet_ (2 Rob. 174). As to (2), the rule was expressed by Lord Stowell to be that "goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful"--_Imina_ (3 Rob. 167); but innovations were made upon this rule during the American Civil War which seem to be demanded by the conditions of modern commerce, and might well be followed by a British prize Court. It was held that contraband goods, although _bona fide_ on their way to a neutral port, might be condemned, if intended afterwards to reach the enemy by another ship or even by means of land carriage--_Bermuda_ (3 Wallace); _Peterhoff_ (5 Wallace).
A consignment to Lorenzo Marques, connected as is the town by only forty miles of railway with the Transvaal frontier, would seem to be well within the principles of the Civil War cases as to "continuous voyages."
2. The carriage by a neutral ship of enemy troops, or of even a few military officers, as also of enemy despatches, is an "enemy service" of so important a kind as to involve the confiscation of the vessel concerned, a penalty which, under ordinary circ.u.mstances, is not imposed upon carriage of "contraband" property so called. See Lord Stowell"s luminous judgments in _Orozembo_ (6 Rob. 430) and _Atalanta_ (_ib._ 440). The alleged offence of the ship _Bundesrath_ would seem to be of this description.
The questions, both of "contraband" and of "enemy service," with which our prize Courts must before long have to deal, will be such as to demand from the Judges a competent knowledge of the law of prize, scrupulous fairness towards neutral claimants, and prompt penetration of the Protean disguises which illicit trade so readily a.s.sumes in time of war.
Your obedient servant, T. E. HOLLAND.
Oxford, January 2 (1900).
THE _ALLANTON_ _(Continuous Voyage)_
Sir,--I venture to think that the letter which you print this morning from my friend Dr. Baty, with reference to the steamship _Allanton_, calls for a word of warning; unless, indeed, it is to be taken as merely expressing the private opinion of the writer as to what would be a desirable rule of law.
It would be disastrous if shipowners and insurers were to a.s.sume, that a neutral vessel, if destined for a neutral port, is necessarily safe from capture. Words at any rate capable of this construction may, no doubt, be quoted from one of Lord Stowell"s judgments, now more than a century old; but many things have happened, notably the invention of railways, since the days of that great Judge. The United States cases, decided in the sixties (as Dr. Baty thinks, "on a demonstrably false a.n.a.logy"), in which certain ships were held to be engaged in the carriage of contraband, although their destination was a neutral port, were substantially approved of by Great Britain. Their principle wast adopted by Italy, in the _Doelwijk_, in 1896, and was supported by Great Britain in the correspondence upon this subject which took place with Germany in 1900. It was endorsed, after prolonged discussion, by the Inst.i.tut de Droit International in 1896.
I am, Sir, your obedient servant, T. E. HOLLAND.