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Contingent destination presumed to be hostile.
855. When a ship's destination is expressed in her papers to be dependent upon contingencies, it is presumed to be hostile, if any one of the ports which, under any of the contingencies she may be intended to touch at or go to, be hostile ; but this presumption may be repelled by clear proof that the master has definitively abandoned a hostile destination, and is pursuing a neutral one.
Lushington's Naval Prize Law, p. 37, § 177. In The Delta, Blatchford's Prize Cases, (U. 8. Dist. Ct.,) p. 133, and The Cheshire, ld., p. 151, it was held that, unless a contingent destination to a blockaded port appear on the ship's papers, it will be presumed that there was a dishonest purpose in approaching such port.
Neutral and hostile destination.
856. A ship's destination is considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral ; it is considered hostile, if either the port to which she is bound, or any intermediate port at which she is to call in the course of her voyage be hostile; or if in any part of her voyage she is to go to the enemy's fleet at sea.
Lushington's Naval Prize Law, p. 37, 8 176, 177. One of the chief evidenoes of fraud is a vessel's being out of her regu. lar course leading to the port of destination shown on her papers. Tho Joseph H. Toone, Blatchford's Prize Cases, (U. 8. Dist. Ct.,) p. 223.
Fraud and its effect.
857. The use of false or simulated papers, or false colors, on the part of the master or owner of a ship, for the purpose of deceiving a belligerent, is equivalent to a hostile destination within the last article.
The belligerent has a right to require frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if the latter make use of fraud and false papers to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is no injustice in applying to them the penalty of confiscation. Car
rington o. Merchants' Ins. Co., 8 Peters' U. S. Sripr. Ct. Rep., 495. The Louisa Agnes, Blatchford's Prize Cases, (U. 8. Dist. Ct.,) p. 107.
The spoliation of papers, not explained, in connection with the fact that the prize is enemy's property, (The Zavalla, Blatchford's Prize Cases, (U. 8. Dist. Ct.,) p. 173,) or that she is seized under circumstances wbich place it in her power to violate a blockade, supplies legal cause for condemnation and forfeiture; The Mersey, Id., p. 187; The Ella Warley, Id., 288. And see The Stettin, Id., 272 ; The Maria, Id., 283; The Ella Warley, Id., 648 ; The Albert, Id., 280.
But it has been held that neither the carrying of simulated papers, (Hobbs o. Henning, 17 Common Bench Rep., N. S., 791,) nor the spoliation of papers is deemed per se a ground for condemning a vessel or cargo, though a strong presumption of fraudulent purposes in those having charge of her, which will effect a condemnation if not satisfactorily accounted for. The Mersey, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 187.
Destination of ship conclusive as to goods.
858, The destination of the ship is conclusive as to the destination of the goods on board.
If the destination of the vessel be hostile, then the destination of the goods on board should be considered hostile also, though it may appear from the papers or otherwise that the goods themselves are not intended for the hostile port, but are intended either to be forwarded beyond it, to an ulterior neutral destination, or to be deposited at an intermediate neutral port. On the other hand, if the destination of the vessel be neutral, then the destination of the goods on board should be considered neutral, though it may appear from the papers or otherwise that the goods themselves have an ulterior hostile destination, to be attained by transhipment, overland conveyance or otherwise. Lushington's Naval Prize Law, p. 37, § 178.
To render goods contraband of war liable to seizure they must be taken in delicto : that is, in the actual prosecution of a voyage to an enemy's port. Hobbs o. Henning, 17 Common Bench Rep., N. 8., 791 ; 34 Law Journal, C. P., 117.
Mr. Seward, however, in his letter in the “ Trent" case, assumes the British law to be that the circumstance that the ship was proceeding from a neutral port to a neutral port does not modify the right of the belligerent captor.
The rule above stated is preferable, as being in the interest of neutrals, and is generally supported by the English decisions, though in direct conflict with the American authorities.
In the case of the Bermuda, 3 Wallace's U. 8. Supr. Ct. Rep., 514, it was held, that voyages from neutral ports intended for belligerent, are not protected by an intention of touching at an intermediate neutral port. Contraband is always subject to seizure when being conveyed to a belligerent destination, whether the voyage be direct or indirect.
What goods are contraband. · 859, Private property of any person whomsoever, and public property of a neutral nation, are contraband of war when consisting of articles manufactured for and primarily used for military purposes, in time of war ;' and actually destined for the use of the hostile nation in war; but not otherwise.
1 This rule, the modern sanctions of which are stated below, would ex. clude from the doctrine of contraband those classes of goods which cause the most embarrassing questions and most frequently threaten the peace of neutrals.
In the absence of treaties, which now, however, are numerous and im. portant, as will appear below, the classification of goods as contraband and not contraband, which is best supported by American and English decisions, says Chief Justice CHASE, in the case of the Peterhoff, 5 Wal. lace's U. S. Supr. Ct. Rep., 58, “ may be said to divide all merchandise into three classes. Of these the first consists of articles manufactured, and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes."
“Merchandise of the first class destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contra. band ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege."
Artillery, harness, men's army bluchers, artillery boots, government regulation gray blankets, are of the first class. Id.
Contraband is liable to capture when destined to the hostile country or to the actual military or naval use of the enemy, (according to the above rule,) whether a violation of blockade be intended or not. ld.
Dana reviews the leading authorities as follows:
“The principal point in dispute is as to articles admitted to be of am. biguous or uncertain use, when in the enemy's country and in time of war.”
“One class of writers contends for an absolute rule as to all articles of such descriptions; so that if upon the application of the general test, they are left ancipitis usus, they must be free, and no further inquiry can be made for the purpose of ascertaining the probable use in the particular case. Another class of writers contends, that as to such articles
inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. The latter rule has been unquestionably the British doctrine, enforced by her orders in council and prize courts, recognized in her treaties, and sustained by her statesmen and text writers. Reddie on Maritime Intern. Law, II., 456; Phillimore's Intern. Lau, III., 245-284; Wildman's Intern. Law, II., 210, et seq.; Manning's Law of Nations, 282, et seq; Moseley on Contraband, passim. It may also be said, in the main, to have been the American doctrine." Kent's Commentaries, I., 140; Halleck, Intern. Lau, 569-590 ; Woolsey, Intern. Law, SS 180, 181.
"Professor Parsons, (Marit. Law, II., 93, 94, Boston, 1859,) thus defines contraband as, in his judgment, settled by the practice of maritime nations: A trade with a belligerent, intended to provide him with military supplies, equipments, instruments or arms. Goods are contraband which are in fact munitions of war, or may certainly become so, or which are designed or capable of being used for the support or assistance of an enemy in carrying on war, offensively or defensively. Thus, even provisions, if they are intended to be sent to a place, which an enemy is attempting to reduce by starvation, and in general, articles ordinarily only used only for peaceful purposes, if capable of a military use, and sent to places where it is probable that such a use will be made of them are contraband of war; and so is all property destined to a beseiged or blockaded town."
“Of the continental writers, Hautefeuille contends for the absolute rule limiting contraband to such articles as are in their nature of first necessity for war, substantially exclusively military in their use, and so made up as to be capable of direct and immediate use in war. (Tit. 8, § 2, tom. II., pp. 84, 101, 154, 412 ; tom, III., p. 222.) Ortolan is of the same opinion, in principle; and contends that all modern treaties limit the application of contraband to articles directly and solely applicable to war; yet he admits that certain articles not actually munitions of war, but whose usefulness is chiefly in war, may, under circumstances, be contraband; as sulphur, saltpetre, marine steam machinery, &c.; but coal, he contends, from its general necessity, is always free. (Tom. II., ch. p. 6 179–206.)"
“ Massé, (Droit Comm., I., 209-211.) admits that the circumstances may determine whether articles doubtful in their nature are contraband in the particolar case, as the character of the port of destination, the quantity of goods, and the necessities and character of the war. The same view is taken by Tetens, a Swedish writer, (Sur les Droits Reciprogues, pp. 111.-113.) Hubner, (lib. II., ch. I., SS 8, 9,) seems to be of the same opinion with Tetens and Massé."
“ Klüber, (8 288,) says that naval stores are not contraband; but adds, that in case of doubt as to the quality of particular articles, the presumption should be in favor of the freedom of trade.”
“ The subject is not affected by the Declaration of Paris, of 1856." Dana's Wheaton, Elements of Intern. Lau, note 226, p. 629.
Lushington (Naval Prize Lau, pp. 35, 36, SS 169–172,) states the following rules as embodying the present British law.
“ All goods fit for purposes of war only, and certain other goods which, though fit for purposes of peace, are in their nature peculiarly serviceable to the enemy in war, on board a vessel which has a hostile destination, are absolutely contraband.”
The list of goods absolutely contraband comprises : Arms of all kinds, and machinery for manufacturing arms; anmunition and materials for ammunition, including lead, sulphate of potash, muriate of potash, (chloride of potassium,) chlorate of potash, and nitrate of soda ; gunpowder and its materials, saltpetro and brimstone ; also guncotton ; military equipments and clothing ; military stores, naval stores, such as masts, (Charlotte, 5 C. Robinson's Rep., 305; Staadt Embden, 1 ld., 27,) spars, rudders, and ship timber, (Twende Brodre, 4 C. Robinson's Rep., 33,) hemp, (Apollo, 4 C. Robinson's Rep., 161 ; Evert, 4 Id., 354; Gute Gesellschaft Michael, 4 Id., 94,) and cordage, sail-cloth, (Neptunus, 3 C. Robinson's Rep., 108 ;) pitch and tar, (Jonge. Tobias, 1 C. Robinson's Rep., 329 ; Twee Juffrowen, 4 Id., 242 ; Neptunus, 6 ld., 408 ;) copper, fit for sheathing vessels, (Charlotte, 5 C. Robinson's Rep., 275 ;) marine engines, and the componen: parts thereof, including screw-propellers, pad. dle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates and fire-bars ; marine cement, and the materials used in the manufacture thereof, as blue lias and Portland cement ; iron, in any of the following forms,-anchors, rivet-iron, angle-iron, round bars of from three-quarters to five-eighths of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding one-quarter of an inch, and low moor and bowling plates.
“All goods fit for purposes of war and peace alike, (not hereinbefore specified as absolutely contraband,) on board a vessel which has a hostile destination, are conditionally contraband ; that is, they are contraband only in case it is to be presumed that they are intended to be used for purposes of war. This presumption arises when such hostile 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."
The list of goods conditionally contraband comprises :
Provisions and liquors fit for the consumption of army or navy, (Haabet, 2 C. Robinson's Rep., 182; Jouge Margaretta, 1 ld.,191 ; Radger, 6 Id., 125 ; Edward, 4 Id., 68 ;) money; telegraphic materials, such as wire, porous cups, platina, sulphuric acid, and zinc, (see Parliamen tary Papers, North America, No. 14, 1863, p. 5, and see note to Article 964 of this Book ;) materials for the construction of a railway, as iron. bars, sleepers, &c.; coals, (see Lord Kingsdown's Speech in the House of Lords, May 26, 1861 ;) hay ; horses ; rosin, (Nostra Signora de Begona, 5 C. Robinson's Rep., 98 ;) tallow, (Neptunus, 3 C. Robinson's Rep., 108 :) timber, (Twende Brodre, 4 C. Robinson's Rep., 37.)
Provisions have not in general been deemed contraband by the mod. ern law of nations, if destined for the ordinary use of life in the enemy's country; but it has been held that they may become so, although the