ing forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; amunition and explosives of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses and mules."

"CONDITIONALLY CONTRABAND. — Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs and money, when such materials or money are destined for the enemy's forces; provisions, when actually destined for the enemy's military or naval forces.”1

The range of articles classed as contraband will naturally vary from time to time as changes in the method of carrying on war occur. Horses have usually been regarded as contraband by France, England, and the United States, except in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.2 In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general classes. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity

1 U. S. Naval War Code, Arts. 34, 36; Appendix, p. 412; see Propositions Institute Int. Law, Cambridge, 1895, §§ 3 and 4. 2 The Commercen," 1 Wheat., 382.

to seize and confiscate it as it passed through the Straits of Gibraltar. But upon the request of the Italian government it . . . refrained from treating sulphur as contraband."1

§ 132. Penalty for Carrying Contraband

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

The general rules are as follows:

1. When the ship and the contraband cargo belong to the same owner, both are liable to be condemned.

2. When the ship and the contraband cargo belong to different owners, the cargo only is liable to be condemned.

3. When the owner of the cargo is also part owner of the ship, it has been held that his part of the ship is also liable to be condemned.2

4. When non-contraband goods on the ship belong to the same owner with the contraband goods, it has been held that these goods are also liable to be condemned. "To escape from the contagion of contraband, the innocent articles must be the property of a different owner. "3

5. A vessel which would otherwise be free when carrying contraband may become liable to condemna

1 See article of John Bassett Moore in Review of Reviews, May, 1899.

2 The "Jonge Tobias," 1 C. Rob. 329.

8 The "Staadt Embden," 1 C. Rob. 26; Takahashi, p. 94.

tion on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination.

6. 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.

As Perels maintains, it is difficult to see how the fourth rule can be enforced consistently with the Declaration of Paris, by which they would be exempt even if belonging to the enemy.1

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.

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 preëmption 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 is not viewed with favor upon the Continent as indicating a departure from the generally accepted practice. 3

1 Perels, "Manuel Droit Maritime," § 46, p. 283.

2 p. 690, § 247.

8 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 either condemned or regarded with disfavor. An illustra

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§ 133. Unneutral Service

Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a participation in the contest. 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. The carriage of enemy dispatches.

2. The carriage of certain belligerent persons.

3. Aid by auxiliary coal, repair, supply, or transpor ships.

4. Knowing coöperation in the transmission of cer tain messages and information to the belligerent.

(1) Of the carriage of dispatches, in the case of the Atalanta, Lord Stowell said:

"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

tion 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. 765, § 278. See Appendix, p. 402.

effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state.'

"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 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." 2

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

(2) 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 military or naval service of the belligerent state. 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 an already settled principle "that a public ship, though of a nation at war, cannot take persons

16 C. Rob. 440, 454.

2 U. S. Naval War Code, Art. 20; Appendix, p. 406.

8 The "Orozembo," 6 C. Rob. 430.