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right of interference with neutral commerce falls under the three heads of contraband, blockade and unneutral service. Under the first, he may under certain conditions, confiscate neutral property which may aid his enemy or interfere with his military operations;82 under the second, he may forbid neutrals to have any communication with such part of his enemy's maritime frontier as he can effectually watch, confiscation being the penalty for an attempt to run a legitimately established blockade; 83 and under the third, he may forbid neutral vessels from rendering certain services which may directly assist his enemy.84 To give effect to these rights, the belligerent's cruisers may visit and search, and detain any suspected neutral vessel, and his sanction is the power to confiscate the offending vessel or cargo after it has been condemned in the belligerent's prize court.85 By resistance to the belligerent's right of visit and search, the neutral constructively assumes enemy character and becomes subject to capture and confiscation. If a suspected vessel is found innocent by a prize court, she is only entitled to compensation if there was no probable cause for her detention.86

The belligerent may, subject to the limitations established by acknowledged principles of international law, fix upon the articles which he will regard as contraband, and compel neutrals to respect his decision, under penalty of confiscation. There are certain international rules which have been adopted and have received general sanction at recent Conferences, particularly the London Naval Conference of 1908, and certain wellestablished principles of prize law, which belligerents can disregard only at the risk of international reclamation. For example, the seizure of conditional contraband such as foodstuffs, without evidence of its destination for hostile military use, under a presumption that its consignment to enemy commercial ports is proof of its intended military use, is an

"The intricate rules governing contraband carriage, which have been much simplified by the Declaration of London, will be found discussed in Oppenheim, II, sec. 391 and in the special works cited by him at the head of Chapter IV.

» Oppenheim, II, sees. 368-390.

M Ibid., II, sees. 407-413.

« Bentwich, 108.

"Bentwich, 109 and cases cited. See also the Eastry (Gt. Brit.) v. Japan, Takahashi, 8., International Law Applied to the Russo-Japanese War, New York, 1908, pp. 358, 739.

abuse of belligerent and a violation of neutral rights and has afforded ground for diplomatic claims.87 Vessels violating the belligerent's contraband regulations or his interpretation, on facts or law, of his right of capture, are tried in his municipal prize courts; but as the decisions of these courts are not necessarily binding on neutral nations, the latter have often successfully brought international claims against erroneous condemnations by municipal prize courts.88

■ See e. g., Arabia (U. S.) v. Russia, For. Rel. 1904 and 1905 and MS. Dept. of State, 1911; and AnHope (U. S.) v. Japan, MS. Dept. of State, 1911-1913. Belligerents have frequently violated the rule that a presumption of innocent use attaches to conditional contraband not consigned to a military base or destination and that the burden lies upon the captor to prove, and not upon the cargo owner to disprove, its intended hostile military use. Legal presumptions and the burden of proof play an exceedingly important part in claims arising out of captures on account of contraband. The designation of provisions as absolute contraband evoked earnest protests from neutrals during the Russo-Japanese war. Bon, Louis, La guerre Russo-Japonaise et la neutralitf, Montpelier, 1909, p. 227.

"See, e. g., the recent award of the Hague court, May 6, 1913, in the case of the Carthage (France) v. Italy, Jan. 26 and Mar. 6, 1912, 7 A. J. I. L. 623, in which Italy was held liable in damages for the capture and detention of a neutral vessel and the confiscation of an aeroplane on board, the seizure having been made without sufficient grounds to assert the hostile destination of the aeroplane. Hostile destination being a condition of contraband, the most important difference between absolute and conditional contraband lies in the presumptions of hostile use arising out of its consignment. Thus absolute contraband consigned to enemy territory is presumed to be destined for hostile military use, and the doctrine of continuous voyage applies. Conditional contraband, on the other hand, is presumed to have a non-hostile destination unless consigned to the military arm of the government, directly or indirectly, and the captor has the burden of overcoming the presumption. Oppenheim, II, § 395; Hirschmann, Otto, Das Internationale Prisenrecht, Mtinchen, 1912, § 38. The generally accepted rule now is that the doctrine of continuous voyage does not apply to conditional contraband. Again, goods found in an enemy's ship are presumed to be enemy's property. The neutral must prove its neutral ownership, the evidence required depending upon the nature of the case. The matter of ownership is often a determining issue in prize cases. In the case of the Manouba (France) v. Italy, Jan. 26 and Mar. 6,1912, Hague Court of Arbitration, indemnity was awarded for the capture and detention of a vessel having on board certain suspected enemy soldiers, the ground of award being that no demand for their surrender had been made. See also cases reported in Moore's Arb. 3843-3885.

The impartial student of international law must have greeted with astonishment Great Britain's recent radical departure from the accepted principles of maritime law in war, a course grievously subversive of the rights of neutrals. It seems inconceivable that Great Britain could have expected neutral nations to consent to the

Since the Declaration of Paris of 1856 a blockade to be binding must be effective, which means, according to the Anglo-American practice, that the force maintaining the blockade must be sufficient to make it dangerous for neutrals to enter. Thus the interference with neutral commerce by the establishment of a paper blockade of ports in the hands of insurgents has in numerous cases been held to involve the responsibility of the State.89 Similarly, erroneous notice of the blockade of a port causing an abandonment of the voyage was held to justify an award.90 The rules relating to notice must be strictly followed, except in the case

practical abrogation of the distinction between absolute and conditional contraband in the matter of hostile and innocent destination, and of the presumptions thereto attaching, as well as the remarkable enlargement of the contraband lists. The Order in Council of October 29, 1914 provides that notwithstanding the provisions of Art. 35 of the Declaration of London, which renders conditional contraband liable to capture only if destined "for the use of the armed forces or of a government department of the enemy state," conditional contraband "shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned 'to order,' or if the ship's papers do not show who is the consignee of the goods or if they show a consignee of the goods in territory belonging to or occupied by the enemy." Moreover, "the owner of the goods" must "prove that their destination was innocent." Not only has the immunity of conditional contraband from the application of the doctrine of continuous voyages been practically set aside, but conditional contraband bound for any neutral port, if consigned "to order" is confiscable. Moreover, the established rule that the captor has the burden of proving the hostile destination of conditional contraband, a rule which Great Britain earnestly supported during and after the Russo-Japanese War, has been completely reversed by the Order. It is interesting to compare Sir Edward Grey's contention in the Oldhamia case against Russia, Jan. 4 and Aug. 22, 1910. Misc. No. 1, 1912, Cd. 6011, pp. 15-17. Great Britain has left very little on the non-contraband list. In addition, if a neutral vessel has proceeded to an enemy port with false papers, she is liable to capture and condemnation "if she is encountered before the end of her next voyage." Unless neutral governments have acquiesced in these Napoleonic restrictions upon neutral commerce, and thereby estopped themselves from supporting diplomatic claims of their citizens sustaining injury by these violations of international law, it would seem that Great Britain is laying the ground for a large number of just pecuniary claims by neutral nations on behalf of their citizens.

"Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 331, 336; Orinoco Asphalt Co. (Germany) v. Venezuela, ibid. 586; De Caro (Italy) v. Venezuela, ibid. 810; Martini, ibid. 819, and cases before the Anglo-Chilean Tribunal of 1893; Williamson, Balfour (Gt. Brit.) v. Chile, Reel. pres. al Trib. Anglo-Chileno, III, 335; St. Mary's Bay, ibid. 557.

"Bayne, Monmouth and Htija (Gt. Brit.) v. U. 8., May 8, 1871, Moore's Arb. 3923-3928.

of a vessel having an intention to run a blockade.91 The penalty for violation of the blockade is confiscation of vessel and cargo, for knowledge of the owner of the cargo is presumed. Numerous international claims have been brought against the decisions of prize courts having condemned and confiscated vessels for violation of a blockade.92

Prize courts are established in the interests of neutrals and belligerents. The belligerents wish to be protected by a decision of these municipal courts, instituted by themselves, against the claims of neutrals based on alleged unjustifiable captures. Numerous claims have been paid on account of unlawful seizures of neutral vessels or cargo, when the prize court held the seizure to have been illegal and without probable cause.93 As prize courts are municipal courts interpreting international law, their judgments are not necessarily internationally binding.94 Indemnities have frequently been awarded by arbitral courts or have been arranged through diplomatic settlements on claims arising out of wrongful condemnations by national prize courts.95 By Convention XII of the Second Hague Conference, as yet unratified, an international prize court to serve as a court of appeal from decisions of national prize courts was provided for.96

"Hale's Rep. 127. See Portendic claims in which France was held liable for failure to properly notify a blockade. 30 St. Pap. 581; 34 ibid. 1036; 42 ibid. 1377; Moore's Arb. 4937, and note in Lapradelle's Recueil, p. 538.

92 Moore's Arb. 3885-3923.

"See, e. g., cases of the British schooners E. R. Nickerson and Wary, illegally seized during war with Spain, Sen. Doc. 396, 57th Cong., 1st sess., 32 Stat. L. 552; The Eastry (Gt. Brit.) v. Japan, Takahashi, op. cit. 739, 358; Manovba (France) v. Italy, supra, 7 A. J. I. L. 629. Certain cases reported in Moore's Arb., ch. LXVI, p. 3815 et seg.

94 As between private parties, the decree of a prize court is a judgment in a proceeding in rem, and hence is conclusive against all the world as to matters within its jurisdiction. CushiDg v. Laird, 107 U. S. 69.

•* Certain cases in Moore's Arb., ch. LXVI, p. 3815 et seq. and cases in RussoJapanese War, Takahashi, op. cit.

See also treaties between United States and Venezuela, May 1, 1852, Malloy, II, 1842; United States and Two Sicilies, Oct. 14, 1832, 20 St. Pap. 277; France and Brazil, Aug. 21, 1828, 15 St. Pap. 1242; United States and Portugal, Jan. 19, 1832, 19 St. Pap. 1379; Great Britain and Brazil, May 5, 1829, 18 St. Pap. 689; France and United States, July 4, 1831, Moore's Arb. 4447-4485.

* Oppenheim, sec. 192; Scott, J. B., The Hague Peace Conferences, ch. X, pp. 465

A captured merchant vessel may not as a rule be destroyed instead of being conducted to a port of a prize court, since the transfer of title only becomes final after adjudication by a prize court. The few exceptions to this rule are based upon necessity, each country having its own regulations. A frequent justification for destruction is the unseaworthy condition of the prize which prevents sending her in for adjudication, or the inability of the captor to spare a prize crew.97 If the capture is subsequently held by a prize court to have been lawful, the neutral owner of goods on the destroyed vessel has no claim to indemnity.98

The seizure by a belligerent of an enemy or neutral vessel or cargo within the territorial waters of a neutral Power has given rise to numerous cases before prize courts. It is clear that such violation of neutral territory renders the belligerent liable to the neutral, and the latter may rightfully demand the restitution of the captured vessel.99 Lord Stowell and Justice Story in several prize cases decided in the early part of the nineteenth century, held that the claim for restitution could be made by the neutral government only,100 and not by the captured vessel, for as between the belligerents the capture was rightful.101 However, the British-American Mixed Commission of 1871, in passing upon the claim of the Sir William, Peel, which was decided adversely to the vessel by the

"See Oppenheim, sec. 194, in which numerous grounds are stated which have justified destruction. Under the Oxford rules of the Institute of International Law (1913), destruction is only permitted if the safety of the captor ship or the success of actual present military operations requires it (Art. 104). In Arts. 107, 113 and 114 indemnities are provided for in case the capture, seizure or destruction is held unwarranted.

K Oppenheim, sec. 194. But see probable effect of Art. 3 of Convention XII, Scott, 485.

"Art. 3 of Convention XIII of the Second Hague Conference makes it obligatory upon such neutral Power to "employ the means at its disposal to release the prize with its officers and crew." Oppenheim, II, sec. 360; Scott, I, 620, et seq. See The Florida, 101 U. S. 37, a Confederate cruiser seized by United States in territorial waters of Brazil. On the reparation made to Brazil, see Moore's Dig. VII, 1090. See also The Chesapeake, Moore's Dig. VII, 937, and cases mentioned in same volume, § 1334.

m The Diligentia, 1 Dodson, 412; Eliza Anne, 1 Dodson, 244 (dictum); The Anna, 5 Rob. 373; The Sir William Peel, 5 Wall. 517; The Anne, 3 Wheat. 447. See also Dana's Wheaton, sec. 430 and note; the Twee Gebroeders, 3 Rob. 162, and Oppenheim, II, sec. 362.

U1 The Anne, 3 Wheat. 447; The Sir Wiiliam Peel, 5 Wall. 517.

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