the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities or of the declaration of contraband, has had no opportunity of discharging the contraband. "A vessel is deemed to be aware of the existence of a state of war or of a declaration of contraband if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband, provided such notification was made in sufficient time. A vesse' is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities." This gives an exception arising from the want of knowledge of hostilities which is more or less common in all similar cases involving neutrals. "Art. 44. A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent war-ship. "The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. "The captor is at liberty to destroy the contraband that has been handed over to him under these conditions." Of this article the report of the American delegates says: "A rule was adopted that a ship seized for carrying contraband, although not itself liable to confiscation because the proportion of contraband was below one half, could be authorized to proceed according to circumstances if the captain was ready to deliver the contraband articles to the belligerent manof-war. The captor in such a case has the option of destroying the contraband which is thus delivered to him. This procedure is one of value, as it saves from capture and detention a neutral liner filled with passengers, mails, and valuable freight, which might have a small amount of contraband known or unknown to its captain and owner. This procedure is also in conformity with many treaties made by the United States, dating from 1783 to 1864. It avoids vexatious seizure of neutral vesselsbad enough in the times of small vessels, but intolerable with the great liners of to-day." There must be a trial and judgment of a prize-court of the captor having proper jurisdiction in regard to the goods involved whether destroyed or not. This article finishes the chapter on contraband of the declaration of London and it may be considered in connection with the accompanying exposition a satisfactory treatment of the question. It may be said here that the accompanying report which was adopted with little amendment by the naval conference was prepared by the learned first delegate from FranceM. Renault, and is worthy of its very distinguished author, who was on this occasion the official reporter of the draughting committee. In closing this subject it must be borne in mind that the manufacture and trade of contraband is not illegal so far as neutrals are concerned, unless it takes the form of an accompaniment of a military or hostile expedition from a neutral port. The neutral may and often does warn his nationals of the penalty and results of such trade, but all such trade on the part of neutral citizens or subjects is at their own risk and cannot receive the protection of their state. "In fact," as Richard Henry Dana says, "the right of the belligerent to prevent certain things getting into the military use of his enemy is the foundation of the law of contraband, and its limits are, as in most other cases, the practical results of the conflict between this belligerent right on the one hand 1 Report of American delegation on contraband of war, London naval conference, Appendix IV. and the right of the neutral to trade with the enemy on the other."1 194. Pre-emption.-The question of pre-emption is not dealt with by the declaration of London. By pre-emption we mean the forcible purchase of contraband articles by paying a price which is generally arrived at by taking the original cost of the goods, to which are added the expenses including the freight and a reasonable profit, reckoned as at least ten per cent. The British Admiralty Manual of 1888 (No. 84) reads that "the carriage of goods conditionally contraband and of such absolutely contraband goods as are in an unmanufactured state and are the produce of the country exporting them is usually followed only by the pre-emption of such goods by the British Government, which then pays freight to the vessel carrying the goods." Pre-emption remains a possible operation in dealing with contraband and is, of course, a mitigation of the right of condemnation. Hershey says: "In 1890 the Institute of International Law recognized the right of pre-emption in the case of articles ancipitis usus. "Since pre-emption is a mitigation of the rule preventing confiscation as the penalty for the carriage of contraband, it is, of course, always open to belligerents to resort to in all cases when the goods are undoubtedly contraband."2 A process of pre-emption is allowed in the treaty between the United States and Prussia, which is regarded as still operative.3 1 Dana's "Wheaton," 8th ed., note, 226. TOPICS AND REFERENCES 1. Definition and General Principles of Contraband— Ferguson, vol. II, 462. G. B. Davis, 3d ed., chap. XIII. Oppenheim, 2d ed., vol. II, 480-1. 2. Enumeration of Contraband and Non-Contraband Articles "Declaration of London," chap. II, see Appendix IV. Westlake. 2d ed., vol. II, 277-287. Hall, 6th ed., 651-663. 3. Destination of Contraband and Consequent Judgments— Naval War College, "International Law Topics," 1907, 115-122, 127-135. Earl Loreburn, "Capture at Sea," chap. V. Moore's "Digest," vol. VII, 695–7, and as to continuous voyages, 698– 744. 4. The Penalty of Contraband Trade Fenwick's "Neutrality Laws," 104-7, 158-9. Oppenheim, 2d ed., vol. II, 506-514. T. J. Lawrence, "Principles of International Law," 4th ed., pars. 253-9. 5. Pre-emption of Contraband Goods Hall, 6th ed., 663-4, note. Twiss, sec. 146. Woolsey, 6th ed., sec. 197. CHAPTER XXVII UNNEUTRAL SERVICE 195. The Carriage of Persons and Despatches for the Enemy. Again we find in the declaration of London the latest and best accepted treatment of the subject of unneutral service, which has been also called "hostile assistance," and the "analogues of contraband." Although the London naval conference adopted the term l'assistance hostile in French to cover the subject, the best translation and expression in English seems to be unneutral service, which may be said to finally give the term which is to be used in English. There is a seeming similarity between the service known as the carriage of contraband and that of unneutral service. The essential difference, however, is that the carriage of contraband refers to the trade in contraband articles or merchandise while unneutral service means the carriage of persons, by vessels, who are in service of the enemy or who by means of the vessel in which they are transported perform service lacking neutral character in the prosecution of the war. This service may not be directly hostile in its nature. We will first discuss the subject of the carriage of persons for the enemy. In the action of the London naval conference unneutral service engaged in by neutral vessels has been divided in Article 45 of the declaration of London into two classes according to the gravity of the act of which the neutral vessel is accused. In the first case, a neutral vessel will be condemned and in a general way receive the same treatment as a neutral vessel liable to the penalty accompanying the carriage of contraband, but the flag covers the goods that are carried on board. |