Equity as to conditional Contraband. England being at that time at war with the Dutch, his judgment was not to insist on having pitch, &c. to be Contraband goods, but rather that they should not be esteemed so: "and my reason," he said, "was because the Dutch could have them notwithstanding by small vessels, which should take them in at Hamburg, or have them brought from Lubeck most part of the way by water to Hamburg, and from Hamburg in those vessels they could bring them down the Elbe, and from thence by the Flats, which are shoal waters full of sand on the coast of Bremen, and so along to Holland, without going at all into the open sea, or coming within the danger of our ships, which could not come among those Flats, nor hinder the Dutch from having of those commodities. But on the other side they could not be brought to England but through the wide sea, where they were subject to the danger of being intercepted by our enemies; and if I should have agreed to have them Contraband goods, I conceived the same would have hindered England being supplied, and not have hindered our enemies having of them. But now, I said, our war with Spain had made a great difference as to that matter, because they could not have them but through the wide sea, where they must be brought by us, and we shall watch the conveyance of them." 148. In the absence of treaty engagements, under which ships have been enumerated amongst articles prohibited to be transported to the enemy's country", a question has sometimes arisen with respect to ships which are going for sale to an enemy's port, the construction of which ships is such, that there can be no cumstances doubt that they would be easily convertible to belliWhere the neutral owner knew that gerent uses. Ships under cir Contra band of War. 11 Treaty of Westminster of 1654, supr. Treaty of Whitehall of 1661. his vessel was peculiarly adapted to the purposes of war, and was avowedly going with it to the enemy's country with the intention and expectation of selling it to the enemy to be employed as a vessel of war, Lord Stowell had no hesitation in condemning the vessel as Contraband of War 12. The same view had been adopted by the Lords of Appeal on 27 July 1804 in the case of the Brutus, which had been recently built at Salisbury, in the State of Massachusetts, pierced for fourteen guns, but with only two mounted to defend her, as alleged, against French privateers. She had been sent on her first voyage to, the Havannah with instructions to her master to sell her; and having been captured on her voyage was condemned in the Vice-Admiralty Court of Halifax as Contraband of War13. The Lords on this occasion expressed their reason for condemning the vessel as Contraband' of War, on the ground that she was built, as the report of the Surveyors clearly established, for purposes of war, not for peace, and was going to be sold to the enemy. On the other hand, where the character of a vessel has been equivocal, and it has been actually engaged in trade, and the occasion for selling it has arisen out of the circumstances attending its employment in trade, the Lords have decreed restitution11. The bona fides of the merchant has even been allowed to exempt from confiscation, a vessel which had been employed for the purposes of war, but was withdrawn from such uses. Thus in the Raven, Jennings, the vessel had been a French privateer, and had been condemned as such in New York; but it appeared that the purchaser had bought her for the purposes 14 Fanny, Ingraham, 24 March 1804. Neptune, Gibbs, 18 July 12 The Richmond, 5 Ch. Rob. p. 331, 7 Dec. 1804. 13 The Brutus, 5 Ch. Rob. Ap- 1804. pendix, p. 1. The transport, not dise to the penal Law of Nations. of trade, and having used his best endeavours to make her fit for that service, had found her unsuitable, and was on that account intending to sell her again, the Lords reversed the judgment of the ViceAdmiralty Court of the Bahamas and decreed restitution. It will appear to be the result of the various judgments of the highest British Court of Prize, that though the principle of considering the transport of ships of war to the enemy as contraband is strictly upheld by it, the application of the principle has been restricted to cases in which no doubt existed as to the character of the vessels, or as to the purposes for which they were intended to be sold. § 149. By the Ancient Law of Europe, the carrying the sale of of Contraband of War to an enemy's port worked a merchan- forfeiture of the ship; nor can it be said, as Lord enemy Stowell has justly observed 15, that such a penalty under the is unjust or not supported by the general analogies of law, for the owner of the ship has engaged it in an unlawful commerce. In the Proclamation 16 issued by King Charles I in 1626, to warn neutrals not to furnish the King of Spain and his subjects with provision for shipping or munition for the wars, or with victuals, it is declared, that "if any person whatsoever after three months from the publication of these presents shall, by any of his Majesty's own ships, or the ships of any of his subjects authorised to that effect, be taken sailing towards the places aforesaid, having on board any of the things aforesaid, or returning thence in the same voyage, having vented or disposed of the said prohibited goods, his Majesty will hold both the ships and goods so taken to be lawful prize, and cause them to be ordered as 15 The Ringende, Jacob, I Ch. Rob. p. 91. 16 Rymer, Fœdera, Tom. XVIII. p. 856. Robinson's Collectanea Maritima, p. 66. duly forfeited; whereby his Majesty doth put in practice no innovation, since the same course has been held, and the same penalties have been heretofore inflicted by other States and Princes upon the like occasions, and avowed and maintained by public writings and apologies." This rule appears to have been modified in respect of the return voyage as early as the year 1672, since we find it laid down amongst the positions" of Sir Robert Wiseman, King's Advocate, that "nothing is forfeited but what is taken going to the enemy; for after the contraband goods are delivered, neither the ship nor the proceeds of the contraband goods, upon their return, will be liable upon that account to confiscation, much less will any other lading in the ship be confiscated." On the other hand the same eminent civilian lays it down that "by the Law of Nations a ship carrying contraband goods forfeits itself only and the said goods contraband, but not any other goods besides, that are not contraband." It seems however that under the modern practice of the British Prize Courts, as stated by Lord Stowell, a milder rule has been adopted, and the carrying of contraband articles is attended only with loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with other malignant circumstances 18. The milder rule dates from the early part of the eighteenth century, as 17 Pratt on Contraband of War, p. 255. 18 Bynkershoek strongly vindicates the strictness of the ancient law: " : "Publicabam quoque naves amicas, si scientibus dominis contrabanda ad hostes deferrent; et nisi pacta impediant, omnino publicandæ sunt, quia earum domini operantur rei illicitæ." Quæst. Juris Publici, L. I. c. I. Grotius and Loccenius distinguish the case, in which the owner of the ship is privy to the contraband cargo, and in such case hold that the ship is forfeited; but where the contraband nature of the cargo is unknown to the we find an exception introduced into the twenty-sixth article of the Treaty concluded between France and Great Britain at Utrecht in 1713, in favour of the ship itself as well as of the other goods found therein, which were to be esteemed free and not confiscated as lawful prize, notwithstanding that part of the cargo should consist of goods declared by that treaty to be contraband, and accordingly liable to be confiscated. In order however to exempt the ship from confiscation, the most perfect good faith must be shown upon the part of the owner of the ship and the master as his agent, for false papers setting up a pretended neutral destination will work a forfeiture of the ship1, as well as of the cargo. So if the trade be in breach of any specific Treaty-engagements, as for instance when a Danish ship was carrying tar to an enemy's port, contrary to the Treaty-engagements between Great Britain and Denmark 20. So if an attempt is made by the master to conceal any contraband cargo on board by fictitious bills of lading, the ship will be condemned with such portions of the cargo11. Contraband articles will also affect innocent parts of the cargo when they both belong to the same owners 22, and contraband articles, appearing by the ship's papers to belong to a partowner of the ship, have been held to affect his share of the vessel 23. According to the practice of the French Prize Courts, if the contraband portion of the cargo compose three quarters of the entire cargo, owner of the ship, the forfeiture 19 The Sarah Christina, I Ch. Ch. Rob. p. 68. 6 Ch. Rob. p. 126. The Ranger, 20 The Neutralitet, 3 Ch. Rob. p. 296. 21 The Richmond, 5 Ch. Rob. P. 325. 22 The Stadt Embden, 1 Ch. Rob. p. 27. 23 The Jonge Thomas, 1 Ch. Rob. p. 329. |
