ceptible of use in war are not to be declared contraband of war." A specific free list was also established including many raw materials such as cotton, wool, including agricultural and mining machinery, fancy goods, etc. Likewise articles serving exclusively to aid the sick and wounded may not be treated as contraband of war. Articles intended for the use of the vessel in which they are found, and those intended for the use of her crew and passengers during the voyage, may not be treated as contraband.

It was recognized that in the course of time, through new inventions, etc., other articles might properly be added to the lists of absolute or conditional contraband, and provision to this end was made by means of a notified declaration.1

134. Penalty for Carrying Contraband

Hostile destination renders

(a) No penalty attaches to the simple act of transportation of contraband. It is the hostile destination of the goods that renders them liable to goods liable to penalty and the vessel liable to delay or other penalty. consequences according to circumstances.

Hostile destination for absolute contraband is "the territory belonging to or occupied by the enemy, or to the armed forces of the enemy." Hostile destination for conditional contraband is in general restricted, and conditional contraband must be 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 articles cannot in fact be used for the purposes of the war in progress." 2

(b) The Declaration of London, 1909, provides as follows: "ART. 37. A vessel carrying articles liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout

1 Appendix, Ch. II, p. 454. Appendix, Articles 30-37, pp. 456–457.

the whole course of her voyage, even if she has the intention to touch at a port of call before reaching the hostile destination.

"ART. 38. A capture is not to be made on the ground of a carriage of contraband previously accomplished and at the time completed.

"ART. 39. Contraband is liable to condemnation."

A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination.

In certain instances, vessels have been held liable to condemnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden.

The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail, and may be condemned to pay costs.1

Preëmption.

(c) Under special circumstances goods have been treated as liable to preëmption instead of absolute seizure. Of this Hall says, "In strictness every article which is either necessarily contraband, or which has become so from the special circumstances of war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preemption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount."2 This practice was not viewed with favor upon the Continent because indicating a departure from the generally accepted practice.3

2 Hall, p. 663.

In some cases, belligerents exercise the so-called right of using or destroying neutral property on the plea of necessity, giving compensation. This practice is called "angary," or "prestation," and is by most jurists

(d) Provision was, however, made in the Declaration of London, 1909, by which

"A vessel stopped because carrying contraband, and not liable to condemnation on account of the proportion of contraband, may, according to circumstances, be allowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship.

When contraband is only part of the cargo.

"The delivery of the contraband is to be entered by the captor on the log book of the vessel stopped, and the master of the vessel must furnish the captor duly certified copies of all relevant papers.

"The captor is at liberty to destroy the contraband which is thus delivered to him." 1

The United States has from time to time made treaties involving this principle. An early treaty between the United States and Sweden, 1783, says of the seizure of neutral vessels with contraband:

"And in case the contraband merchandize be only a part of the cargo and the master of the vessel agrees, consents & offers to deliver them to the vessel that has discovered them, in that case the latter, after receiving the merchandizes which are good prize, shall immediately let the vessel go & shall not by any means hinder her from pursuing her voyage to the place of her destination." 2

135. Unneutral Service

Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a either condemned or regarded with disfavor. An illustration is the sinking, during the Franco-Prussian War of 1870, by the Germans, of several British merchant ships in the Seine to prevent French gunboats from going up the river. During the same war, the Germans seized in Alsace, for military purposes, certain railway carriages of the Central Swiss Railway and certain Austrian rolling stock, all of which remained in the possession of the Germans for some time. See Lawrence, § 252; Hall, p. 737. 2 Article 13, Treaty 1783.

1 Appendix, Article 44, p. 458.

participation in the contest by the neutral rendering the service. Such service involves assistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service. The acts generally regarded as in the category of unneutral service are:

1. Participation in the hostilities.

2. The transmission of intelligence in the interest of the enemy.

3. The carriage of certain belligerent persons.

4. Aid by auxiliary coal, repair, supply, transport ships, or other ships in control of the belligerent.

Participation

in hostilities.

(a) Participation in the hostilities naturally identifies a neutral with the belligerent and makes him and his property liable to similar treatment. (b) of the transmission of intelligence, in the case of the Atalanta, Lord Stowell said:

Transmission

of intelligence.

"How is the intercourse between the mother country and the colonies kept up in the time of peace? By ships of war or by packets in the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state." 1

The United States Naval Code of 1900, withdrawn in 1904, states that

"A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying

16 C. Rob., 440, 454.

dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service, in which case the mail bags must be forwarded with seals unbroken.”

Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief.

Such acts as the repetition of signals by a neutral ship in interest of a belligerent might render the ship liable to penalty. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes.

(c) The limitation in regard to the carriage of certain belligerent persons applies to those who travel in such manner as to make it evident that they travel in the Carriage of certain bellig- military or naval service of the belligerent state. erent persons. If the carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service. The neutral carrier engaged in ordinary service is not obliged to investigate the character of persons who take passage in the usual way. The case of the Trent had no particular bearing upon this subject, as it merely emphasized a principle at that time settled "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons." 2

The principle thus stated by Dana was modified as regards 1 The "Orozembo," 6 C. Rob., 430. 'Wheat. D., p. 648.