192. Destination of Contraband and Consequent Judgment. -As to the destination of absolute contraband the declaration of London says in

"Art. 30. Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transshipment or a subsequent transport by land."

It makes no difference in the cases coming under this article what the destination of the vessel may be, as the destination of the goods is the determining factor. This article establishes the principle of continuous voyages so far as absolute contraband is concerned. By continuous voyage is meant in this case that the progress of these goods to a final belligerent destination makes their voyage continuous, even if a transshipment occurs at a neutral port. The final and ultimate destination makes the trade in which absolutely contraband goods are carried a contraband trade and subjects them to capture and condemnation. It makes no difference whether the destination is territory belonging to or occupied by the enemy or for his armed military or naval forces, the penalty is the same.1 "Art. 31. Proof of the destination specified in Article 30 is complete in the following cases:

"(1) When the goods are documented for discharge in an enemy port or for delivery to the armed forces of the enemy.

"(2) When the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.

"Art. 32. Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation."

These articles treat of the necessary proof as to the destina

1 Declaration of London, accompanying report, Appendix IV.

tion, which is more fully discussed in the report accompanying the declaration, which can be found in full in Appendix IV of this book.

"Art. 33. Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods can not in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4)."

The above article treats of the destination of conditional contraband, which differs from the rules of absolute contraband in two respects: (1) there is no question of destination for the enemy in general but of destination for the use of his armed forces or government departments, and (2) the doctrine of continuous voyage is excluded.

The articles of conditional contraband carried by neutral carriers are often bulky and are not always distinguishable as to final destination, and they would also be difficult to take from a vessel at sea which is not liable to capture.

"Art. 34. The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband."

The word commerçant in the French original is here translated contractor. It is referred to as "a trader established in an enemy country who, as a matter of common knowledge, supplies the enemy government with articles of the kind in question."

This article has been the subject of much discussion in England and has been one of the great causes of the opposition to the ratification of the declaration by that country. By the French text of the declaration it was claimed by its opponents that the word commerçant applied to any merchant and not to a government contractor as defined in the accompanying report. In addition, as the article reads that an enemy destination is presumed "if the goods are consigned to a fortified place belonging to the enemy," and as most of the British seaports are fortified it was held by the English critics of the declaration that foodstuffs for the use of non-combatants would be prevented from reaching by this expression innocent destinations. It certainly was not the intention of the conference, as understood by the writer, a delegate from the United States, that these interpretations of the text were correct. The enemy's forces alone were contemplated as the destination. The accompanying report with its explanations as adopted also were considered by the writer an authoritative exposition of the declaration.

A further discussion as to the presumptions referred to in the article will be found in the accompanying report, in Appendix IV.

Articles 35 and 36 read as follows:

"Art. 35. Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port.

"The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.

"Art. 36. Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred

to in Article 33, is liable to capture in cases where the enemy country has no seaboard."

Article 35 emphasizes the exclusion as a rule of the doctrine of continuous voyages from additional contraband. The pivot of contraband trade rests upon the ship's papers unless they are manifestly false. Article 36 gives, however, an exception in favor of the doctrine of continuous voyages when the only port of supply of an enemy country is a neutral port. This was the case of the Boer country and would be the case of Bolivia and Servia.

The extent of the liability of a contraband carrier is shown in Article 37.

"Art. 37. A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination."

The limitation, so far as the taint is concerned, will be found in the next article.

"Art. 38. A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.”

193. The Penalty of Contraband Trade.-As a penalty for the carriage of contraband, the goods that are contraband are liable to condemnation. This statement, which is found in Article 39 of the declaration, is in accordance with accepted

usage.

"It was universally admitted that in certain cases the condemnation of the contraband is not enough and that the vessel herself should also be condemned, but opinions differed as to what these cases were. 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? . . . If the standard of volume or weight is adopted, the master will ship innocent goods occupying space or of weight sufficient to exceed the contraband. A similar remark may be made as regards the standard of value or freight. The consequence is that, in order to justify condemnation, it is enough that the contraband should form more than half the cargo by any one of the above standards."1

In the report of the American delegation to the secretary of state it is stated in regard to this penalty that “much relief is afforded to neutrals in respect to the penalty of carrying contraband. In the first place, the ship is not subject to confiscation unless more than half of the cargo is contraband, to be determined either by weight, volume, value, or freight value."

"Art. 41. If a vessel carrying contraband is released she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prizecourt and the custody of the ship and cargo during the proceedings."

It was considered that some deterrent should be prescribed for the carriage of contraband when it was not sufficient to condemn the vessel. The article just given accomplishes this purpose, which may be very serious as a penalty.

"Art. 42. Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation."

This is in accordance with usage and involves an additional punishment to the bearer of the contraband articles, who is the principal offender.

"Art. 43. If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband can not be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to

1 See accompanying report, Appendix IV.