Contraband is of two kinds—absolute contraband, such as arms of all kinds, machinery for manufacturing arms, ammunition, and any materials which are of direct application in naval or military armaments; and conditional contraband, consisting of articles which are fit for, but not necessarily of direct, application to hostile uses. The British Admiralty Manual of Prize Law (1888), following this distinction, enumerates as absolutely contraband: arms of all kinds and machinery for manufacturing arms; ammunition and materials for ammunition, including lead, sulphate of potash, muriate of potash, chlorate of potash and nitrate of soda; gunpowder and its materials, saltpetre and brimstone; also guncotton; military equipments and clothing; military stores, naval stores, such as masts, spars, rudders, and ship-timber, hemp and cordage, sailcloth, pitch and tar, copper fit for sheathing vessels, marine engines and the component parts thereof, including screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates and fire-bars, marine-cement and the material used in the manufacture thereof, blue lias and Portland cements; iron in any of the following forms—anchors, rivet iron, angle iron, round bars of iron of from 34 to 58 of an inch diameter, rivets, strips of iron, sheets, plate iron exceeding 14 of an inch, and Low Moor and Bowling plates;—and as conditionally contraband: provisions and liquors fit for the consumption of army or navy, money, telegraphic materials, such as wire, porous cups, platina, sulphuric acid, materials for the construction of a railway, such as iron bars, sleepers and so forth, coal, hay, horses, rosin, tallow, timber.[1]
The classing of coal as conditional contraband has given rise to much controversy. Great Britain has consistently held it to be so. During the war of 1870 the French and German warships were only allowed to take at English ports enough to return to a French or German port respectively. In 1885, during the Franco-Chinese campaign, after protest Coal. by the Chinese government, Great Britain applied the same rule at Hong-Kong and Singapore. During the Spanish-American War neither belligerent seems to have treated coal as contraband. In the case of the coal-ships which were prevented from landing their cargoes at Cuba, the prevention seems to have been connected with the blockade only. At the West African conference of 1884 Russia declared that she would “categorically refuse her consent to any articles in any treaty, convention or instrument whatever which would imply” the recognition of coal as contraband of war (Parliamentary Papers, Africa, No. 4, 1885). Coal, however, is so essential to the prosecution of war that it is impossible to avoid classing it as conditional contraband, so long as such contraband is recognized. The alternative, of course, would be to allow both belligerents freely to supply themselves at neutral ports, and neutral vessels freely to supply belligerent coaling stations.
During the Franco-Chinese campaign of 1885 and the South African War there was controversy as to the legality of treating food-stuffs as conditional contraband. During the former the subject-matter was rice, and the circumstances were exceptional. The hostilities being at the outset reprisals, and not actual war, France at first exercised Foodstuffs. no right of search over British merchant ships. Great Britain, on her side, for the same reason did not object to French war vessels coaling, victualling and repairing at British ports. On China protesting against this indulgence to France, Great Britain, as above stated, put in force. her practice of treating coal as contraband, and thereupon France exercised her corresponding belligerent right of searching British vessels. The closing of British coaling stations to French warships was a serious inconvenience to France, and she proclaimed “that in the circumstances in which war was being carried on” the cargoes of rice which were being shipped to the northern Chinese ports were contraband. By depriving the Chinese government of part of the annual tribute sent from the southern provinces in the form of rice she hoped to bring pressure on the Peking government. This was a manifest stretching of the sense of conditional contraband. Besides, no distinction was made as to destination. The British government protested, but no cases were brought into the French prize courts, and the legality of the measure has never been judicially examined.
The controversy during the South African War was confined to theory. In practice no stoppage of food-stuffs seems to have taken place, though the fact that the whole able-bodied population of the enemy states formed the fighting force opposed to Great Britain made it clear that the free import of food supplies from abroad helped the farmer-soldiers to carry on warfare without the immediate care of raising food crops.
The two cases cited show the great difficulty of fixing the character of conditional contraband in a way to prevent arbitrary seizures. During the Russo-Japanese War (1904–1905) there was a warm controversy between the British and Russian governments on the scope of the belligerent right to declare certain articles contraband. The Conference of London (1908–9), by enumerating the articles which are absolute contraband, limiting those which may be declared contraband, and fixing certain articles which can in no case be declared contraband, has endeavoured to meet the difficulties which arise in practice (see Contraband).
Trade between neutrals has a prima facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port, is enemy’s territory, then, according to the “doctrine of continuous voyages,” the goods may be treated as if they had been shipped to the enemy’s territory direct. Continuous voyages. This doctrine, though Anglo-Saxon in its origin and development, has been put in force by an Italian court in the case of the Doelwijk, a Dutch vessel which was adjudged good prize on the ground that, although bound for Jibouti, a French colonial port, it was laden with a provision of arms of a model which had gone out of use, and which could only be intended for use by the Abyssinians, with whom Italy was at war. The subject has been fully discussed by the Institute of International Law, by whom the following rule has been adopted: “Destination to the enemy is presumed where the shipment is to one of the enemy’s ports, or to a neutral port, if it is unquestionably proved by the facts that the neutral port was only a stage (étape) towards the enemy as the final destination of a single commercial operation.”[2]
The question of the legality of the doctrine was raised by Chancellor von Bülow during the South African War in connexion with the stopping of German ships bound for Delagoa Bay, a neutral port. He contended that such vessels were quite,
- ↑ The Japanese Prize Law (21st August 1894) makes the following distinction: (1) Arms of all kinds, brimstone, dynamite, nitrate of potash, and all goods fit for the purpose of war exclusively; the above-mentioned goods are contraband when they are on board a vessel which either has a hostile destination or calls at any port of the enemy. (2) Provisions and liquors, money, telegraphic materials, such as wire, platinum, sulphuric acid and zinc, porous cups, materials for the construction of a railway, as iron bars, sleepers, &c., coal, timber and so forth: the above-mentioned goods are contraband goods when the destination of the vessel is either the enemy’s fleet at sea or a hostile port, used exclusively or mainly for naval or military equipment. When it is clearly known that, though goods detailed in the above sections 1 and 2 are found on board a vessel, they are merely for her own use, they cannot be deemed contraband goods.
- ↑ The only person in that eminent assemblage who raised an objection to the principle of the doctrine was the distinguished French writer on maritime law, M. Desjardins, who declined to acknowledge that any theory of continuous voyages was, or could be, consistently with the existing law of neutrality, juridically known to International Law. He admitted, at the same time, that penalties of contraband would be incurred if the shipping to a neutral port were effected merely in order “to deceive the belligerent as to the real destination of the cargo.” This was the French ruling in the Frau Houwina case (26th May 1855). He proposed to restrict the operation of the doctrine to this condition, but was opposed by three Italian professors of international law, Professors Fusinato, Catellani and Buzzati, on the ground that it would exclude, as it obviously would do, the contingency, of goods shipped to a neutral port, not for the purpose of defrauding the belligerent, but for that of being ultimately delivered to a belligerent not in possession of a seaport. The article as quoted in the text was also supported by the greatest German authority on International Maritime Law, Director Perels of the German admiralty.
