The Japanese Navy asked that it be given advance notice of foreign vessels entering or leaving the blockaded area. The Department instructed the Consul General at Shanghai that it had no objection to the giving of such notices in particular instances but that local American representatives should not agree to give such notifications and that the immunity of American vessels should not be waived. Mr. Hull to the Consul General at Shanghai (Gauss), telegrams 325 and 400, Sept. 5 and 22, 1937, MS. Department of State, file 793.94112/21, /84A. In 1940 an American vessel was detained several times by the Japanese Navy as a result of its entering an area on the Chinese coast where a Japanese decree had sought to prohibit navigation. The Department of State suggested to the American Consul at Shanghai that he inform his Japanese colleague that the United States "does not recognize or acquiesce in any asserted right by the Japanese naval or other authorities to detain an American vessel proceeding on its lawful occasions". Following the third detention of the vessel, the Department, in December 1940, instructed the Ambassador to Japan as follows: Please request that the Japanese Government issue instructions to the concerned Japanese naval authorities to release without further delay the American-owned motor vessel Estelle L., pointing out that this Government does not recognize any right by Japanese naval authorities to apply in China regulations proclaimed by them to vessels under the American flag. The Consul General at Shanghai subsequently reported to the Department that the vessel had been released as the result of a private arrangement between the owner and the Japanese naval authorities, whereby the owner agreed to cease operating the Estelle L. in blockaded waters and the Japanese authorities permitted his importation of silk from the hinterland. The Consul at Shanghai (Butrick) to the Secretary of State (Hull), telegram 751, Aug. 7, 1940; the Acting Secretary of State (Welles) to Mr. Butrick, telegram 368, Aug. 14, 1940: MS. Department of State, file 793.94112/386. Mr. Butrick to Mr. Hull, telegram 1006, Sept. 30, 1940, ibid. /394; Mr. Hull to the Ambassador to Japan (Grew), telegram 526, Dec. 7, 1940, ibid. /405; Mr. Grew to Mr. Hull, no. 5198, Dec. 11, 1940 (enclosure), ibid. /411; the Consul General at Shanghai (Lockhart) to Mr. Hull, no. 227, Feb. 6, 1941, ibid. /419. NEUTRAL GOODS ON ENEMY SHIPS §611 Paragraph 68 of the Instructions for the Navy of the United States Governing Maritime Warfare, issued June 30, 1917, provided: "Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag." (Declaration of Paris, 1856, art. 3.) See also Garner, Prize Law During the World War (1927) 355-361; Hall's International Law (8th ed., by Higgins, 1924) 872-878. The British Prize Court held that an American-owned submarine signaling device in a German merchant vessel was not to be regarded as "neutral goods" within the meaning of the Declaration of Paris. The device was ordered condemned as prize. The Schlesien, I Br. & Col. Pr. Cas. 13, II LI. Pr. Cas. 92 (1914). Concerning a shipment of pepper on the German vessel Schlesien, captured by a British war vessel in 1914, the Department of State wrote that it appears that the shipment of pepper in question was made But this action by the Department will not relieve you of the necessity of taking the steps to present a claim to the Prize Court before which the vessel is taken for any property of yours which may be part of the cargo. It is the business of the claimant and not of the Department to present and look after claims. for property seized in vessels of one of the belligerents. The Counselor for the Department of State (Lansing) to Parrish Brothers, Inc., Aug. 10, 1914, MS. Department of State, file 341.115P24. A German vessel carrying non-contraband cargo owned by an American was seized by a French cruiser and the cargo was con Goods on destroyed vessel demned by the French Prize Council. On appeal, the Conseil d'État reversed the decision and held that the cargo should be released to its owner, who had sufficiently proved his neutral American nationality. The Conseil d'État said that under the terms of article 3 of the Declaration of Paris of April 16, 1856, neutral goods with the exception of contraband of war may not be seized under enemy flag, and under the provisions of articles 58 and 59 of the Declaration of the London Naval Conference of February 26, 1909, in force at the time of the capture of the ship Martha-Bockhahn, the neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of their owner; . . . he who claims the ownership of the goods has the burden of proving their neutral character, in the absence of which they are presumed to be enemy goods. The Martha-Bockhahn (Jan. 22, 1919), XXVII Revue générale de droit international public (1920), Jurisprudence en matière de prises maritimes, 1, 2, translation. The Conseil d'État did not allow damages for seizure and detention, which were justified because the goods were found on board an enemy vessel. The Department of State, in 1914, inquired of the German Government as to whether proceedings in the nature of prize adjudication would be held with reference to American-owned cargoes on board British vessels sunk by German belligerent action. The reply was in the affirmative. The Acting Secretary of State (Lansing) to the Ambassador to Germany (Gerard), telegram 370, Oct. 9, 1914, MS. Department of State, file 300.115/768b; Mr. Gerard to Secretary Bryan, telegram 724, Nov. 4, 1914, ibid. 763.72112/304; 1914 For. Rel. 330, 336. A British vessel bound for Norway was captured and sunk in the North Sea by a German submarine because, it was said, of inability to bring it to a German port. Norwegian claimants to the cargo appeared in the prize-court proceedings. The Hamburg Prize Court held that there was a right to seize or sink an enemy vessel and that under such circumstances no indemnity need be paid the owners of neutral cargo. The Imperial Supreme Prize Court affirmed the decision, stating that article III of the Declaration of Paris gave no protection against belligerent action caused by the necessities of war but merely protected neutral cargo on enemy vessels against condemnation under prize law. The Glitra, 1915 For. Rel. Supp. 350; The Glitra, ibid. 572; I Entscheidungen des Oberprisengerichts in Berlin (1918) 34; 10 A.J.I.L. (1916) 921. the basis of the reasoning of the Prize Court [in The Glitra] was that the belligerent right to sink an enemy ship in certain circumstances 64 overrides the immunity of neutral property which may happen to be aboard; that complete respect for the immunity of the goods would deprive the captor of the exercise of the belligerent right of destroying the ship; that a cargo must be regarded as a 'dependency' of the ship; and that if the latter is liable to destruction the former shares the lot of the ship, regardless of its neutral character. The validity of this interpretation of both the general rule of international law and of Article 3 of the Declaration of Paris does not seem to be well-founded and it has been the subject of strong criticism." Garner, Prize Law During the World War (1927) 360. See also Quincy Wright, "The Destruction of Neutral Property on Enemy Vessels", 11 A.J.I.L. (1917) 358. See also the case of the Kaipara in which a neutral American firm was refused damages because of the destruction of contraband cargo on board a British steamer captured by a German war vessel and destroyed, the nearness of enemy cruisers making it impossible to take her into port. The Prize Court held that it made no difference whether the vessel knew of the outbreak of war before its capture, saying that neutral goods on enemy ships not aware of the outbreak of hostilities were to be treated like neutral goods on any other kind of enemy ships. The Kaipara (Mar. 29, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 288; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 213. The British steamer Indian Prince was captured in the South Atlantic by a German cruiser and later sunk. The Hamburg Prize Court held that compensation should not be paid to the American cargo-owners. On appeal the Imperial Supreme Prize Court affirmed the decision, saying: The question here is, whether the commander is compelled by international law to refrain from sinking an enemy vessel when he has a legal right to do so, because its destruction would mean the loss of the neutral goods on board, especially if it is impossible for him to bring the vessel in. After repeated examination, the court must continue to answer this question in the negative. The principal reason which is decisive of the case in question lies in the actual dependence of the cargo on the fate of the ship, in consequence of which the cargo has to suffer the injury resulting from an act directed against the ship legally committed according to prize law. It cannot be seen why this principle, which is generally acknowledged and placed beyond doubt by the report of the drafting committee upon Article 64 of the Declaration of London, should apply only to the capture of a ship and not to its just destruction. The Indian Prince, 1915 For. Rel. Supp. 520, 522; 10 A.J.I.L. (1916) 930, 931-932, 935; I Entscheidungen des Oberprisengerichts in Berlin (1918) 87. A British vessel carrying coal from Virginia destined to Brazil was seized by a German war vessel in the South Atlantic and used for a while as an auxiliary. Part of the coal on board was then taken out for the use of the German fleet and the ship was sunk. Claims were brought before the German prize courts by the American charterer of the vessel, who had put on board the bunker coal, and by the American owner of the coal cargo. With respect to the coal lost when the vessel was sunk, the court held that no indemnity should be paid for neutral goods lost on a vessel deemed to be lawfully destroyed; with respect to the coal taken out for the use of German warships, the court held that compensation should be given. In the absence of proof whether this coal came from the cargo or from the bunkers, the court approved an apportionment according to the relative amounts on board in each category. The Indrani (Feb. 17, 1916), I Entscheidungen des Oberprisengerichts in Berlin (1918) 95; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 74. CONTRABAND TRADE IN CONTRABAND §612 In a circular issued by the Department of State on August 15, 1914 it was said: 1. The sale or shipment of contraband of war by citizens of the United States to citizens or subjects of any of the belligerent powers, in course of commerce, is not prohibited by the neutrality laws or the President's proclamation. But contraband, whether shipped in vessels of the belligerents or neutrals, is subject to seizure and confiscation by the belligerents, and when so seized is not entitled to the protection or intervention of this Government. MS. Department of State, file 763.72111/161; 1914 For. Rel. Supp. 275. See the neutrality proclamation issued on Aug. 4, 1914 by the President, 1914 For. Rel. Supp. 547, 550-551. See also post, §684. "The word contraband (Italian, contrabbando; Spanish, contrabando) signifies something prohibited-a trade carried on, or an article imported or dealt in, in violation of some inhibition. Thus, smuggled goods are often spoken of as contraband. "The term contraband of war denotes commodities which it is unlawful to carry to the country, or to the military or naval forces, of a belligerent.” Moore, International Law and Some Current Illusions and Other Essays (1924) 40. "... The carrier of contraband by no means violates an injunction of the Law of Nations. But belligerents have, by the Law of Nations, the right to prohibit and punish the carriage of contraband by neutral merchantmen, and the carrier of contraband violates, for this reason, an injunction of the belligerent concerned. It is not International Law, but the Municipal Law of the belligerents, which makes carriage of contraband illegitimate and penal. The question why the carriage of contraband articles may be prohibited and punished by the belligerents, although it is legitimate so far as International Law is concerned, can only be answered by reference to the historical development of the Law of Nations. In contradistinction to former practice, which interdicted all trade between neutrals and the enemy, the principle of freedom of commerce between |