"The term penalty, however, although often mentioned-for example, in the Commercen (1 Wheaton, at p. 394)—is not in this connection really one which implies that the carriage of contraband is attended with the usual incidents of the commission of an offence. Neutrals who carry contraband do not break the law of nations; they run a risk for adequate gain, and, if they are caught, they take the consequences. If they know what they are doing, those consequences may be very serious; if they do not, they may get off merely with some inconvenience or delay. This must suffice them."

The liability of contraband to capture is, of course, not affected by the nationality of the owner or that of the ship on which it is transported. By the express terms of the Declaration of Paris, the immunity which it establishes in favor of enemy goods on neutral vessels and of neutral goods on enemy vessels does not apply to contraband of war. Such goods are therefore liable to capture regardless of the nationality of the vessel in which they are laden. While contraband is usually carried on neutral vessels, it may be carried equally on vessels flying the flag of the captor state or that of an ally.1

Sec. 386. Distinction Between Absolute and Conditional Contraband. The customary law of nations, and the Declaration of London which was understood to be merely declaratory of the custom and practice on this point, recognized a distinction between goods which were susceptible exclusively of military use and those which were susceptible of use both for military and civil purposes. But by measures put into effect by most of the belligerent powers during the World War the distinction was practically done away with, all articles of a contraband character being inserted in a single list and the same rule regarding hostile distinction and liability to capture being applied without regard to their difference of character.2

1See among others, the French cases of the Cotenten (Fauchille, Jurispr. Franc. 299), the Narrovian (ibid., 68), and the Kirkoswald (ibid., 441). Sir Edward Grey, in a communication to the American Ambassador at London, dated Feby. 10, 1915 (Supp. to 9 Amer. Jour. 78), said: "Your Excellency will no doubt remember that soon after the outbreak of war an order of His Majesty in Council was issued under which no distinction was drawn in the application of the doctrine of continuous voyage between absolute contraband and conditional contraband, and which also imposed upon the neutral owner of contraband somewhat drastic conditions as to the burden of proof of the guilt or innocence of the shipment."

The decrees and orders of the various belligerent governments by which the distinction was in effect done away with are listed in Verzijl, op. cit., p. 735. By a proclamation of April 19, 1916, the British government abandoned the distinction and issued a single list embracing several hundred articles arranged alphabetically which it proposed to treat as contraband without regard to whether they were, according to former tests, absolute or conditional contraband. Other governments followed the example of the British government. The lists of contraband published from time to time may be

The "free list" of the Declaration of London was likewise disregarded; many articles on the list were declared to be contraband and the Prize Courts frequently condemned such goods.

1

Nevertheless, the Prize Courts appear to have never abandoned entirely the theoretical distinction. Many of the German decisions in fact turned upon the question of whether particular articles were absolute or conditional contraband according to the Declaration of London. Even the Prize Courts of Great Britain, where the distinction had been most completely abandoned by Orders in Council, did not in reaching their conclusions always ignore the traditional difference between the two classes of contraband. Thus in the case of the Louisiana and Other Vessels, in which the liability to capture of certain cattle fodder stuffs was involved, we find Lord Parker saying in 1918: "Fodder stuffs are not absolute contraband. They are conditional contraband only-that is to say, they cannot be condemned as lawful prize unless destined for the enemy government or the enemy's naval or military forces." And he added: "A belligerent state is entitled to seize the contraband goods in transit on reasonable suspicion that, being in their nature absolute contraband, they are destined for the enemy country, or being in their nature conditional contraband, they are destined for the enemy government or the enemy naval or military forces." 4 This was the traditional view and it was the principle embodied

found in the Special Supplement to the American Journal of International Law, Vols. 9 (1915) and 10 (1916), pp. 9 ff. and 14 ff., respectively; also in the white book issued by the Department of State of the United States entitled Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Commerce, No. 1, pp. 5 ff., and No. 3, pp. 89 ff. In explanation of its course, the British Foreign Office (Feby. 10, 1915), stated: "The circumstances of the present war are so peculiar that His Majesty's government consider that for practical purposes the distinction between the two classes of contraband has ceased to have any value. So large a proportion of the inhabitants of the enemy country are taking part, directly or indirectly, in the war that no real distinction can now be drawn between the armed forces and the civilian population. Similarly, the enemy government has taken control, by a series of decrees and orders, of practically all the articles on the list of conditional contraband, so that they are now available for government use. So long as these exceptional conditions continue our belligerent rights with respect to the two kinds of contraband are the same and our treatment of them must be identical." As to the breakdown of the distinction between absolute and conditional contraband, see also Richards, British Year Book of International Law, 1920-31, pp. 19 ff. p. 286.

As to the details see my International Law and the World War, Vol. II,

A long list of such decisions are cited in Verzijl, op. cit., pp. 739 ff.
V Lloyd 248; III Br. & Col. Pr. Cas. 60.

A similar view was expressed in the same year by the German Supreme Prize Court in the case of the Pomona (II Entsch. 147).

in the Declaration of London, although the rule had been set aside by an Order in Council.

Sec. 387. Necessity of Hostile Destination. It goes without saying that to be confiscable as contraband the goods must be destined to the enemy. Lord Sterndale, in the case of the Dirigio and Other Vessels, adverting to the argument of the Crown that it was sufficient according to the Declaration of Paris that goods be on the list of contraband, said he could not accept this argument; it was necessary, he added, that they should have a hostile destination.

3

The Declaration of London in laying down a rule as to what constitutes hostile destination, as is well known, made a distinction between absolute and conditional contraband; the former was declared to be liable to capture when it is destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy, the latter when it is destined for the use of the armed forces, or of a government department of the enemy state (unless in the latter case the goods are not to be used for war purposes.) In the former case it is the place or the character of the consignee which determines the liability; in the latter it is the use to which the goods are to be put. In the cases which came before the Prize Courts involving the liability to capture of absolute contraband, the destination in fact was usually enemy territory and only rarely the armed forces of the enemy. In those involving the liability to capture of conditional contraband the Prize Courts, in theory at least, maintained that the destination must show intended use by the enemy government or its armed forces, but the presumptions of such VIII Lloyd 395; III Br. & Col. Pr. Cas. 452. Article 33.

Article 30.

Such a case, however, was that of the Angelike and Athènes (Fauchille, Jurispr. Franc. 428), where the French Prize Council condemned a quantity of paraffin seized on board a neutral ship and destined to the enemy naval forces on the coast of Crete where the Germans had organized a base of supplies for their submarines. But in the case of the Joannina (ibid., 305), the Council released certain goods destined to Mytilene and Chio, on the ground that neither place was occupied by the enemy.

5

Thus in the case of the Kim and Other Vessels, Sir Samuel Evans, after having reached the conclusion that the cargoes, consisting of conditional contraband, were destined to Germany, said, "The question remains whether their real ultimate destination was for the use of the German government or its naval or military forces.' If not intended for such use they would apparently have had to be restored. But this was before the proclamation of April 16, 1916, which announced that the government would henceforth treat the two kinds of contraband identically. Apparently, after that date there was no need for the Prize Court to concern itself with the question of the possible use to which conditional contraband goods were intended to be put.

See also the case of the Alfred Hage (I Entsch. 25), where the German Prize Court recognized in theory at least the distinction between the rules

intended use, laid down by the Declaration of London, or the new ones introduced by the belligerent governments were so numerous that destination to enemy country was usually interpreted to mean destination for the use of the government or the armed forces. Thus in practice the distinction between the rules governing hostile destination in respect to the two sorts of contraband came to be largely illusory. In short, all contraband goods going to enemy country, whether absolute or conditional, were presumed to be for the use of the government or its armed forces.

Sec. 388. The Doctrine of Continuous Voyage. As is well known, the Declaration of London sanctioned the doctrine of continuous voyage in respect to the carriage of absolute contraband (art. 30), but it did not admit the doctrine as applied to the transportation of conditional contraband, except where it was destined to an enemy country which had no sea board (Arts. 35 and 36). But the Declaration never having been ratified, various belligerent governments, notably those of Great Britain and France, put it into effect with modifications which practically did away with the distinction between the two classes of contraband and subjected both to the same treatment.1 Germany,

governing hostile destination in respect to the two kinds of contraband and left the inference that conditional contraband would not be condemned unless it was destined for the use of the enemy government or its armed forces.

To the same effect see the French cases of the Oranje Nassau (Fauchille, Jurispr. Franc. 77) and the Bormida (ibid., 470), where in both cases the reason assigned for the condemnation of certain conditional contraband was that it was destined for the use of the enemy government or its armed forces. The council added that in order that such goods should be treated as contraband it must be shown that they were destined not only to enemy territory but for the use of the enemy government or the armed forces. In the latter case it was held that destination to an enemy port (Tripoli) around which were assembled numerous troops must be regarded as destination to the armed forces.

Sec. 386, supra. This was done in large measure by a British Order in Council of October 29, 1914, by an order of March 30, 1916, which declared that the former order "should not be deemed to have limited in any way the right of His Majesty in accordance with the law of nations to capture goods upon the ground that they are conditional contraband, nor to affect or to have affected the liability of conditional contraband to capture, whether the carriage of the goods to their destination be direct or entail trans-shipment or a subsequent transport by land"; and finally by a proclamation of July 7, 1916, abrogating all previous Orders in Council, putting the Declaration of London in effect, and extending the doctrine of continuous voyage to the carriage of all contraband without restriction. The French government did likewise by decrees of Nov. 6, 1914, and July 7, 1916; Italy by "instructions" of July 15, 1915, and by the adoption of Rules Relative to Capture March 25, 1917; Portugal by a decree of August 14, 1916; and Russia by ukases of Sept. 14, 1914, and Dec. 21, 1914.

As to the attitude of the belligerent governments on the subject see my work cited, Vol. II, pp. 297 ff., and Verzijl, op. cit., Sec. 443. The history of the origin, development and recent extensions of the doctrine of continu

by way of reprisal, amended her prize ordinance in the same sense. The position taken by the British government was that the Declaration of London in excluding the application of the doctrine of continuous voyage from the carriage of conditional contraband had altered the existing customary rule of international law. As to this, Sir Samuel Evans, in the case of the Kim,1 said:

"I have no hesitation in pronouncing that, in my view, the doctrine of continuous voyage or transportation, both in relation to carriage by sea and to carriage by over land, had become part of the law of nations at the commencement of the present war, in accordance with the principles of recognised legal decisions, and with the view of the great body of modern jurists, and also with the practice of nations in recent maritime warfare."

The purpose and effect of the Orders in Council in putting the Declaration into effect with modifications and finally abrogating it in its entirety was therefore to prevent the alteration which the Declaration had attempted and to restore the customary rule of international law.

In the case of the Kim and Other Vessels, Sir Samuel Evans, referring to the effect of the Order in Council of Oct. 29, 1914, on the Declaration of London,2 said:

"It is true that in a matter of real substance it alters the proposed compromise incorporated in Article 35 of the Declaration of London, whereby, if the Declaration had been ratified, the doctrine of continuous voyage would have been excluded for conditional contraband. The provision in Article 35 was described by Sir Robert Finlay [counsel for several of the claimants] as, 'An innovation in international law as hitherto recognized in the United States and by Great Britain and other States, introducing an innovation of the first importance by excluding the doctrine of continuous voyage in the case of conditional contraband.'

"What the Order in Council did, therefore, was to prevent the innovation. In this regard it therefore proceeded not in violation of, but upon the basis of, the existing international law upon the subject.

"It may be well to note, and to record, that at the London Conference which produced the Declaration, all the allied Powers engaged in this war, and also the United States, had been in favour of continuing to apply the doctrine of continuous voyage or continuous transportation to conditional as well as to absolute contraband, a doctrine which, as we have seen, was nurtured and specially favoured by the courts of the United States."

ous voyage is reviewed in a monograph by Dr. H. W. Briggs, entitled "The Doctrine of Continuous Voyage" (1926).

1III Lloyd 167; 1 Br. & Col. Pr. Cas. 485.

See the quotation from Lord Parker in the case of the Louisiana (Sec. 419, infra); V, ibid., 248; III, ibid., 60.