As regards conditional contraband, those States which made any distinction at all between absolute and conditional contraband, as a rule confiscated neither the conditional contraband nor the carrying vessel, but seized the former and paid for it. According to British practice[854] hitherto prevailing, freight was paid to the vessel, and the usual compensation for the conditional contraband was the cost price plus 10 per cent. profit. States acting in this way asserted a right to confiscate conditional contraband, but exercised pre-emption in mitigation of such a right. Those Continental writers who refused to recognise the existence of conditional contraband, denied, consequently, that there was a right to confiscate articles not absolutely contraband, but they maintained that every belligerent had, according to the so-called right of angary,[855] a right to stop all such neutral vessels as carried provisions and other goods with a hostile destination of which he might have made use and to seize such goods against payment of their full value.

The Institute of International Law, whose rules regarding contraband, adopted at its meeting at Venice in 1896, restrict contraband to arms, ammunition, articles of military equipment, vessels fitted for naval operations, and instruments for the immediate fabrication of ammunition, proposed a compromise regarding articles of ancipitous use. Although the rules state that those articles may not be considered contraband, they nevertheless give the choice to a belligerent of either exercising pre-emption or seizing and temporarily retaining such articles against payment of indemnities.[856]

§ 406. The Declaration of London offers by articles 39 to 44 a settlement of the controversy respecting the penalty for carriage of contraband which represents a fair compromise.

The chief rule is (article 39) that contraband goods, whether absolute or conditional contraband, may be confiscated. The carrying vessel may (article 40) likewise be confiscated if the contraband reckoned either by value, weight, volume, or freight, forms more than half the cargo. If the latter be not the case, and if the carrying vessel be therefore released, she may (article 41) be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national Prize Court and the custody of the ship and cargo during the proceedings. But whatever be the proportion between contraband and innocent goods on a vessel, innocent goods (article 42) which belong to the owner of the contraband and are on board the same carrying vessel, may be confiscated.

If a vessel carrying contraband sails before the outbreak of war (article 43), or is unaware of a declaration of contraband which applies to her cargo, or has no opportunity of discharging her cargo after receiving such knowledge, the contraband may only be confiscated on payment of compensation, and the vessel herself and her innocent cargo may not be confiscated nor may the vessel be condemned to pay any costs and expenses incurred by the captor.[857] But there is a presumption which is not rebuttable with regard to the mens rea of the vessel. For according to the second paragraph of article 43 a vessel is considered to have knowledge of the outbreak of war or of a declaration of contraband if she leaves an enemy port after the outbreak of hostilities, or if she leaves a neutral port subsequent to the notification of the outbreak of hostilities or of the declaration of contraband to the Power to which such port belongs, provided such notification was made in sufficient time.

The question of pre-emption of conditional contraband is not mentioned by the Declaration of London. There is, however, nothing to prevent the several maritime Powers from exercising pre-emption in mitigation of their right of confiscation; the future must show whether or no they will be inclined to do this.

§ 406a. Hitherto the practice of the several States has differed—see above, § 405—with regard to the question as to whether a vessel 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. The Declaration of London, although it upholds the general rule that, whatever may be the ultimate fate of the vessel, she must be taken into a port of a Prize Court, admits two exceptions to the rule:—

(1) According to article 44, a vessel which has been stopped for carrying contraband and which is not herself liable to be confiscated on account of the proportion of contraband on board, may—not must—when the circumstances permit it, be allowed to continue her voyage in case she hands over the contraband cargo to the captor. In such a case the captor is at liberty to destroy the contraband handed over to him. But the matter must in any case be brought before a Prize Court. The captor must therefore enter the delivery of the contraband on the log-book of the vessel so stopped, and the master of the latter must give duly certified copies of all relevant papers to the captor.

(2) According to article 54, the captor may—see below, § 431—exceptionally, in case of necessity, demand the handing over, or may proceed himself to the destruction, of any absolute or conditional contraband goods found on a vessel which is not herself liable to condemnation, if the taking of the vessel into the port of a Prize Court would involve danger to the safety of the capturing cruiser or to the success of the operations in which she is engaged at the time. But the captor must, nevertheless, bring the case before a Prize Court. He must, therefore, enter the captured goods on the log-book of the stopped vessel, and must obtain duly certified copies of all relevant papers. If the captor cannot establish the fact before the Prize Court that he was really compelled to abandon the intention of bringing in the carrying vessel, he must be condemned (see article 51) to pay the value of the goods to their owners if the goods were contraband or if they were not. And the same is valid in case (article 52) the seizure or destruction of the goods is held by the Prize Court to have been justifiable, but not the capture itself of the carrying vessel.

CHAPTER V UNNEUTRAL SERVICE

I THE DIFFERENT KINDS OF UNNEUTRAL SERVICE

Hall, §§ 248-253—Lawrence, §§ 260-262—Westlake, II. pp. 261-265—Phillimore, III. §§ 271-274—Halleck, II. pp. 289-301—Taylor, §§ 667-673—Walker, § 72—Wharton, III. § 374—Wheaton, §§ 502-504 and Dana's note No. 228—Moore, VII. §§ 1264-1265—Bluntschli, §§ 815-818—Heffter, § 161A—Geffcken in Holtzendorff, IV. pp. 731-738—Ullmann, § 192—Bonfils, Nos. 1584-1588—Despagnet, Nos. 716-716 bis—Rivier, II. pp. 388-391—Nys, III. pp. 675-681—Calvo, V. §§ 2796-2820—Fiore, III. Nos. 1602-1605, and Code, Nos. 1836-1840—Martens, II. § 136—Kleen, I. §§ 103-106—Boeck, Nos. 660-669—Pillet, p. 330—Gessner, pp. 99-111—Perels, § 47—Testa, p. 212—Dupuis, Nos. 231-238, and Guerre, Nos. 172-188—Bernsten, § 9—Nippold, II. § 35—Holland, Prize Law, §§ 88-105—U.S. Naval War Code, articles 16 and 20—Hautefeuille, II. pp. 173-188—Ortolan, II. pp. 209-213—Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-205—Marquardsen, Der Trent-Fall (1862), pp. 58-71—Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897), pp. 42-55—Takahashi, International Law during the Chino-Japanese War (1899), pp. 52-72—Vetzel, De la contrebande par analogie en droit maritime internationale (1901)—Atherley-Jones, Commerce in War (1906), pp. 304-315—Hirschmann, Das internationale Prisenrecht (1912), §§ 31-32—See also the monographs quoted above at the commencement of § 391, and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, articles 45-47.

§ 407. Before the Declaration of London the term unneutral service was used by several writers with reference to the carriage of certain persons and despatches for the enemy on the part of neutral vessels. The term has been introduced in order to distinguish the carriage of persons and despatches for the enemy from the carriage of contraband, as these were often confounded with each other. Since contraband consists of certain goods only and never of persons or despatches, a vessel carrying persons and despatches for the enemy is not thereby actually carrying contraband.[858] And there is another important difference between the two. Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive assistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. Those writers who did not adopt the term unneutral service, on account of its somewhat misleading character, preferred[859] the expression analogous of contraband, because in practice maritime transport for the enemy was always treated in analogy with, although not as, carriage of contraband.

The Declaration of London puts the whole matter upon a new and very much enlarged basis, for Chapter III. treats in articles 45 to 47, under the heading De l'assistance hostile—the official English translation of which is unneutral service—not only of the carriage of persons for the enemy on the part of a neutral vessel, but also of the transmission of intelligence in the interest of the enemy, the taking of a direct part in the hostilities, and a number of other acts on the part of a neutral vessel. Accordingly the Declaration of London makes a distinction between two kinds of unneutral service, meting out for the one a treatment analogous in a general way to contraband, and for the other a treatment analogous to that of enemy merchant vessels. Carriage of individual members of the armed forces of the enemy and a certain case of transmission of intelligence in the interest of the enemy constitute the first kind, and four groups of acts creating enemy character for the vessel concerned constitute the second kind.[860]

§ 408. Either belligerent may punish neutral vessels for carrying, in the service of the enemy, certain persons.

Such persons included, according to the customary rules of International Law hitherto prevailing, not only members of the armed forces of the enemy, but also individuals who were not yet members of the armed forces but who would have become so as soon as they reached their place of destination, and, thirdly, non-military individuals in the service of the enemy either in such a prominent position that they could be made prisoners of war, or who were going abroad as agents for the purpose of fostering the cause of the enemy. Thus, for instance, if the head of the enemy State or one of his cabinet ministers fled the country to avoid captivity, the neutral vessel that carried him could have been punished, as could also the vessel carrying an agent of the enemy sent abroad to negotiate a loan and the like. However, the mere fact that enemy persons were on board a neutral vessel did not in itself prove that these persons were carried by the vessel for the enemy and in his service. This was the case only when either the vessel knew of the character of the persons and nevertheless carried them, thereby acting in the service of the enemy, or when the vessel was directly hired by the enemy for the purpose of transport of the individuals concerned. Thus, for instance, if able-bodied men booked their passages on a neutral vessel to an enemy port with the secret intention of enlisting in the forces of the enemy, the vessel could not be considered as carrying persons for the enemy; but she could be so considered if an agent of the enemy openly booked their passages. Thus, further, if the fugitive head of the enemy State booked his passage under a false name, and concealed his identity from the vessel, she could not be considered as carrying a person for the enemy; but she could be so considered if she knew whom she was carrying, because she was then aware that she was acting in the service of the enemy. As regards a vessel directly hired by the enemy, there could be no doubt that she was acting in the service of the enemy. Thus the American vessel Orozembo[861] was in 1807, during war between England and the Netherlands, captured and condemned, because, although chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao and to take from there a cargo to America, she received by order of the charterer three Dutch officers and two Dutch civil servants, and sailed, not to Macao, but to Batavia. And the American vessel Friendship[862] was likewise in 1807, during war between England and France, captured and condemned, because she was hired by the French Government to carry ninety shipwrecked officers and sailors home to a French port.

According to British practice hitherto prevailing, a neutral vessel was considered as carrying persons in the service of the enemy even if she were, through the application of force, constrained by the enemy to carry the persons, or if she were in bona-fide ignorance of the status of her passengers. Thus, in 1802, during war between Great Britain and France, the Swedish vessel Carolina[863] was condemned by Sir William Scott for having carried French troops from Egypt to Italy, although the master endeavoured to prove that the vessel was obliged by force to render the transport service. And the above-mentioned vessel Orozembo was condemned[864] by Sir William Scott, although her master was ignorant of the service for the enemy on which he was engaged: "... In cases of bona-fide ignorance there may be no actual delinquency; but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done or at least repeated," said Sir William Scott.[865]

According to the Declaration of London neutral merchantmen may, apart from the case of the carriage of persons who in the course of the voyage directly assist the operations of the enemy, only be considered to render unneutral service by carrying such enemy persons as are actually already members of the armed forces of the enemy. Article 45 makes it quite apparent, through using the words "embodied in the armed forces," that reservists and the like who are on their way to the enemy country for the purpose of there joining the armed forces, do not belong to such enemy persons as a neutral vessel may not carry without exposing herself to punishment for rendering unneutral service to the enemy. And four different cases of carrying enemy persons must be distinguished according to the Declaration of London, namely: that of a neutral vessel exclusively engaged in the transport of enemy troops; that of a vessel transporting a military detachment of the enemy; that of a vessel transporting one or more persons who in the course of the voyage directly assist the operations of the enemy; that of a vessel transporting, on a voyage specially undertaken, individual members of the armed forces of the enemy.

(1) According to article 46, No. 4, a neutral vessel exclusively intended at the time for the transport of enemy troops acquires thereby enemy character. This case will be considered with others of the same kind below in § 410.

(2) In case a vessel, although she is not exclusively therefor destined, and although she is not on a voyage specially undertaken for that purpose, transports, to the knowledge of either the owner or the charterer or the master, a military detachment of the enemy, she is, according to article 45, No. 2, considered to render unneutral service for which she may be punished. Accordingly, if to the knowledge of either the owner or the charterer or the master, a neutral vessel in the ordinary course of her voyage carries a military detachment of the enemy, she is liable to be seized for unneutral service.

(3) In case a neutral vessel, to the knowledge of either the owner or the charterer or the master, carries one or more persons—subjects of one of the belligerents or of a neutral Power—who in the course of the voyage directly assist the operations of the enemy in any way, for instance by signalling or sending message by wireless telegraphy, she is, according to article 45, No. 2, likewise liable to seizure for rendering unneutral service.

(4) In case a neutral vessel carries individual members of the armed forces of the enemy, she is, according to article 45, No. 1, then only liable to seizure if she is on a voyage specially undertaken for such transport, that means, if she has been turned from her ordinary course and has touched at a port outside her ordinary course for the purpose of embarking, or is going to touch at a port outside her ordinary course for the purpose of disembarking, the enemy persons concerned. A liner, therefore, carrying individual members of the armed forces of the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be seized. However, according to article 47, a neutral vessel carrying members of the armed forces of the enemy while pursuing her ordinary course, may be stopped for the purpose of taking off such enemy persons and making them prisoners of war (see below, § 413).

§ 409. Either belligerent may punish neutral merchantmen for transmission of intelligence to the enemy.

According to customary rules hitherto in force, either belligerent might punish neutral vessels for the carriage of political despatches from or to the enemy, and especially for such despatches as were in relation to the war. But to this rule there were two exceptions. Firstly, on the ground that neutrals have a right to demand that their intercourse with either belligerent be not suppressed: a neutral vessel might not, therefore, be punished for carrying despatches from the enemy to neutral Governments, and vice versa,[866] and, further, despatches from the enemy Government to its diplomatic agents and consuls abroad in neutral States, and vice versa.[867] Secondly, on account of article 1 of Convention XI., by which postal correspondence is inviolable, except in the case of violation of blockade, the correspondence destined for, or proceeding from, the blockaded port. However, the mere fact that a neutral vessel had political despatches to or from the enemy on board did not by itself prove that she was carrying them for and in the service of the enemy. Just as in the case of certain enemy persons on board, so in the case of despatches, the vessel was only considered to be carrying them in the service of the enemy if either she knew of their character and had nevertheless taken them on board, or if she was directly hired for the purpose of carrying them. Thus, the American vessel Rapid,[868] which was captured in 1810 during the war between Great Britain and the Netherlands, on her voyage from New York to Tonningen, for having on board a despatch for a Cabinet Minister of the Netherlands hidden under a cover addressed to a merchant at Tonningen, was released by the Prize Court. On the other hand, the Atalanta,[869] which carried despatches in a tea chest hidden in the trunk of a supercargo, was condemned.[870]

According to the Declaration of London the carriage of despatches for the enemy may only be punished in case it falls under the category of transmitting intelligence to the enemy on the part of a neutral vessel. Two kinds of such transmission of intelligence must be distinguished:—

Firstly, according to article 46, No. 4, a neutral vessel exclusively intended for the transmission of intelligence to the enemy acquires thereby enemy character; this will be considered with other cases of the same kind below in § 410.

Secondly, according to article 45, No. 1, a neutral vessel may be seized for transmitting intelligence to the enemy if she is on a voyage specially undertaken for such transmission, that is to say, if she has been turned from her ordinary course and has touched or is going to touch at a port outside her ordinary course for the purpose of transmitting intelligence to the enemy. A liner, therefore, transmitting intelligence to the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be punished. However, self-preservation would in a case of necessity justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy.[871]

The conception "transmission of intelligence" is not defined by the Declaration of London. It certainly means not only oral transmission of intelligence, but also the transmission of despatches containing intelligence. The transmission of any political intelligence of value to the enemy, whether or no the intelligence is in relation to the war, must be considered unneutral service, the case excepted in which intelligence is transmitted from the enemy to neutral Governments, and vice versa, and, further, from the enemy Government to its diplomatic agents and consuls abroad in neutral States. And it must be emphasised that, although a vessel may be seized and punished for unneutral service, according to article 1 of Convention XI. of the Second Hague Peace Conference the postal correspondence of neutrals or belligerents, whatever its character, found on board is inviolable.

§ 410. In contradistinction to cases of unneutral service which are similar to carriage of contraband, the Declaration of London enumerates in article 46 four cases of such kinds of unneutral service as vest neutral vessels with enemy character.[872]

(1) There is, firstly, the case of a neutral merchantman taking a direct part in the hostilities. This may occur in several ways, but such vessel in every case loses her neutral and acquires enemy character, just as a subject of a neutral Power who enlists in the ranks of the enemy armed forces. But a distinction must be made between taking a direct part in the hostilities, for instance rendering assistance to the enemy fleet during battle, on the one hand, and, on the other, acts of a piratical character. If a neutral merchantman—see above, §§ 85, 181, and 254—without Letters of Marque during war and from hatred of one of the belligerents, were to attack and sink merchantmen of such belligerent, she would have to be considered, and could therefore be treated as, a pirate.

(2) There is, secondly, the case of a neutral vessel which sails under the orders or the control of an agent placed on board by the enemy Government. The presence of such agent, and the fact that the vessel sails under his orders or control shows clearly that she is really for all practical purposes part and parcel of the enemy forces.

(3) There is, thirdly, the case of a neutral vessel in the exclusive employment of the enemy. This may occur in two different ways: either the vessel may be rendering a specific service in the exclusive employment of the enemy, as, for instance, did those German merchantmen during the Russo-Japanese War which acted as colliers for the Russian fleet en route for the Far East; or the vessel may be chartered by the enemy so that she is entirely at his disposal for any purpose he may choose, whether such purpose is or is not connected with the war.[873]

(4) There is, fourthly and lastly, the case of a neutral merchantman exclusively intended at the time either for the transport of enemy troops or for the transmission of intelligence for the enemy. This case is different from the case—provided for by article 45, No. 1—of a vessel on a voyage specially undertaken with a view to the carriage of individual members of the armed forces of the enemy. Whereas the latter is a case of unneutral service rendered by a vessel which turns from her course for the purpose of rendering specific service, the former is a case in which the vessel is exclusively and for the time being permanently intended and devoted to the rendering of unneutral service. For the time being she is, therefore, actually part and parcel of the enemy marine. For this reason she is considered to be rendering unneutral service, and to have lost her neutral character, even if, at the moment an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence. The fact is decisive that she is for the time being exclusively intended for such unneutral service, whether or no she is at every moment really engaged in rendering such service. And it makes no difference, whether the vessel is engaged by the enemy and paid for the transport of troops or the transmission of intelligence, or whether she renders the service[874] gratuitously.

II CONSEQUENCES OF UNNEUTRAL SERVICE

See the literature quoted above at the commencement of § 407.