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their last port before the declaration of war, and are captured after the outbreak of hostilities with Austria-Hungary, and brought before British Prize Courts for adjudication, will be detained during the war, or requisitioned subject to indemnity.
I have, etc.,
Finally, on this part of the subject, it is to be noted that the Prize Court held that enemy cargoes on British ships, whether seized at sea or in port, were liable to condemnation, because neither the Declaration of Paris nor any Hague Convention protected them, and therefore the old right of maritime capture of any enemy property afloat still applied.
II. CAPTURE OF NEUTRAL VESSELS AND CARGOES
The allied Powers from the outset of the war agreed to adopt the Declaration of London as the basis of the law to regulate their belligerent rights over neutral shipping in respect of contraband, blockade and unneutral service. The Declaration had not been ratified by England because the Naval Prize Bill of 1911, which was introduced into the English Parliament with a view to its ratification, was finally rejected by the House of Lords and the Government had taken no further steps; but, consequent upon the agreement of the allies, an Order in Council was issued on August 22d stating that the Declaration should be adopted and put in force during the war as if it had been ratified, subject to various additions and modifications. The order was in the following terms:
Whereas during the present hostilities the Naval Forces of His Majesty will co-operate with the French and Russian Naval Forces, and
Whereas it is desirable that the naval operations of the allied forces so far as they affect neutral ships and commerce should be conducted on similar principles, and
Whereas the Governments of France and Russia have informed His Majesty's Government that during the present hostilities it is their intention to act in accordance with the provisions of the Convention known as the Declaration of London, signed on the 26th day of February, 1909, so far as may be practicable.
Now, therefore, His Majesty, by and with the advice of His Privy Council, is pleased to order, and it is hereby ordered, that during the present hostilities the Convention known as the Declaration of London shall, subject to the following additions and modifications, be adopted and put in force by His Majesty's Government as if the same had been ratified by His Majesty:— The additions and modifications are as follows:—
(1) The lists of absolute and conditional contraband contained in the Proclamation dated August 4th, 1914, shall be substituted for the lists contained in Articles 22 and 24 of the said Declaration.
(2) A neutral vessel which succeeded in carrying contraband to the enemy with false papers majr be detained for having carried such contraband if she is encountered before she has completed her return voyage.
(3) The destination referred to in Article 33 may be inferred from any sufficient evidence, and (in addition to the presumption laid down in Article 34) shall be presumed to exist if the goods are consigned to or for an agent of the Enemy State or to or for a merchant or other person under the control of the authorities of the Enemy State.
(4) The existence of a blockade shall be presumed to be known—
(a) to all ships which sailed from or touched at an enemy port a sufficient time after the notification of the blockade to the local authorities to have enabled the enemy Government to make known the existence of the blockade,
(b) to all ships which sailed from or touched at a British or allied port after the publication of the declaration of blockade.
(5) Notwithstanding the provisions of Article 35 of the said Declaration, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture to whatever port the vessel is bound and at whatever port the cargo is to be discharged.
(6) The General Report of the Drafting Committee on the said Declaration presented to the Naval Conference, and adopted by the Conference at the eleventh plenary meeting on February 25th, 1909, shall be considered by all Prize Courts as an authoritative statement of the meaning and intention of the said Declaration, and such Courts shall construe and interpret the provisions of the said Declaration by the light of the commentary given therein.
And the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and each of His Majesty's Principal Secretaries of State, the President of the Probate, Divorce and Admiralty Division of the High Court of Justice, all other Judges of His Majesty's Prize Courts, and all Governors, Officers and Authorities whom it may concern, are to give the necessary directions herein as to them may respectively appertain.
It may be recalled that at the opening of the Crimean War England modified her prize practice in order that it should be uniform with the French and in the present struggle the exercise of the prerogative was called for to secure the necessary modification of the existing British prize law for uniform action with the Allies.
The adoption of the report of M. Renault as the official commentary on the Declaration was expected, as in the discussion of the Naval Prize Bill it was pointed out that many provisions in the articles of the Declaration only received an exact meaning in the text of the commentary.
The modification introduced by the Order in Council into the rules of blockade laid down in the Declaration widens the cases of presumptive knowledge of a blockade which will make a neutral vessel liable to capture for attempted breach of blockade. By Article 15 of the Declaration knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the notification of the blockade to the Power to which the port belongs. By Article 4 of the Order in Council the presumption will apply to a neutral vessel which left a British, French, Russian or Belgian port after the publication of the declaration of blockade, or which left a German or Austrian port in sufficient time after the notification of the blockade to the local authorities to have enabled the enemy government to make known the existence of the blockade to neutrals.
The more important changes, however, affect the doctrine of contraband. The class of absolute contraband is increased by the inclusion of aeroplanes, airships, balloons, etc., which appear in the list of absolute contraband of the proclamation of August 4th, while they are in the list of conditional contraband in Article 24 of the Declaration of London. The effect of the modification is that aeroplanes, etc., can be condemned as prize when found on any vessel destined to the enemy country, or where there is any indication that they are to be forwarded from a neutral port to the enemy country. It is not necessary to show that they are destined for the use of the armed forces or of a government department of the enemy State.
The penalty for carrying contraband is extended by Article 2 of the Order in Council to the case of a vessel which is captured on her return voyage after having carried contraband to the enemy with false papers. This is in accordance with the rule laid down in an English prize case, The Nancy (3 C. Rob. 122), but modifies the rule laid down in Article 38 of the Declaration. It is presumed that the neutral vessel will only be liable to capture on her return voyage if she sailed under false papers, so that the change is very restricted in its effect.
The additions and modifications numbered (3) and (5) in the Order mark a striking extension of the rules upon the capture of conditional contraband which had been formulated by the London Conference. According to the Declaration, conditional contraband could only be captured if shown to be destined for the use of the armed forces or of the government or of a government department of the enemy State, and that destination was presumed to exist if the goods were 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, or if they are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy." Grave doubts had been expressed as to the true interpretation of "contractor" (the French text having commerqant) as also of "a place serving as a base." And the additions in the Declaration, while not throwing light on the second ambiguity, sought to clear up the first by the extension of the presumption of hostile destination when the goods are consigned to or for an agent of the enemy State or to or for a merchant or other person under the control of the authorities of the enemy State. The last-named class, however, itself seems to require interpretation, and it would have been for the prize court to determine it more exactly; but before the question was raised judicially, this part of the Order has been repealed.
Still more important than the extension of the presumption of hostile destination for conditional contraband is the extension to that class of goods of the doctrine of continuous transport. The Declaration applies that rule to absolute contraband, following the practice which started in the American Civil War (see the cases of the Peterhoff and the Springbok, 5 Wall. 28 and 1), and was subsequently illustrated in the case of the Doelwyk, an Austrian steamer seized by the Italians in 1897 in their little war with Abyssinia. But the Declaration expressly rejected the doctrine for conditional contraband except when the enemy country has no seaboard. (Article 36.) Now Germany and Austria are not in that condition, but there were peculiar conditions in the present war, due to the fact that neutral ports, such as Rotterdam and Copenhagen, became the chief means of access to a large part of Germany, owing to the mining of the North Sea and the naval operations. Germany, in fact, was assimilated to the position of a country having no sea coast, because there were no ports on her coast line to which neutral shipping could put in. And the allies naturally could not be expected to allow his armies to be supplied through neighboring neutral ports with food stuffs or fuel or military clothing or railway material any more than with arms and ammunition. The partial adoption and partial rejection of the doctrine of continuous transport for contraband trade at the London Conference was a diplomatic compromise, and such compromises which are not based on any principle do not stand very well the test of stern belligerent practice. In an article which appeared in the last April number of this Journal on the Declaration, the Editor of this review criticized the solution reached at London, and the American plenipotentiary to the Conference likewise criticized it as an unconvincing compromise in a report on the work of the Conference, which was published in the Journal in 1909. Provided the evidence of hostile destination is made out, neutrals cannot fairly complain of the detention of their cargoes of any contraband character consigned to the enemy country through a neutral port. It is the ultimate destination which must be the criterion of innocent or noxious character. It is to be noted that the Declaration of London, not having been ratified before the war by the belligerent Powers, was not a binding treaty between them and neutrals, and it was therefore clearly open to the Allies to modify its rules, provided that they did not violate any recognized rules of international law by their changes. And at the London Conference all the allied Powers, as well as Italy and the United States, had been in favor of applying the doctrine of continuous transport to conditional as well as to absolute contraband.
Another important but short-lived modification of the provisions of the Declaration as to conditional contraband was the addition to the list of conditional contraband articles made by an Order in Council issued on September 20th. It provided that the following articles were to be treated as conditional contraband:
Lead, pig, sheet or pipe,