“(b) Fuel of all kinds; all contrivances for, or means of, transportation on land, in the water or air, and machines used in their manufacture or repair; component parts thereof, instruments, articles, or animals necessary or convenient for their use; materials or ingredients used in their manufacture; articles necessary or convenient for the production or use of such materials or ingredients. "(c) All means of communication, tools, implements, instruments, equipment, maps, pictures, papers and other articles, machines, or documents necessary or convenient for carrying on hostile operations; articles necessary or convenient for their manufacture or use. "(d) Coin, bullion, currency, evidences of debt; also metal, materials, dies, plates, machinery, or other articles necessary or convenient for their manufacture. "Conditional Contraband "SCHEDULE II "(e) All kinds of food, foodstuffs, feed, forage, and clothing and articles and materials used in their production." Department of State, I Bulletin, no. 12, pp. 250-251 (Sept. 13, 1939). The British contraband list was adopted by Canada in a proclamation of Dec. 8, 1939. Canada Gazette, Mar. 2, 1940 (extra); the Minister to Canada (Cromwell) to the Secretary of State (Hull), no. 122, Mar. 5, 1940, MS. Department of State, file 740.00112 European War 1939/1148. For the similar French contraband list, see Journal officiel, Sept. 4, 1939, p. 11096. The German Prize Law Code of Aug. 28, 1939 provided in article 22: "(1) To be considered as contraband (absolute contraband) are all articles and materials which: "1. Directly serve the land, naval or air armament and "2. Are consigned to the enemy territory or the enemy forces." After the outbreak of war a few days later, article 22 was changed to read: "The following articles and materials will be regarded as contraband (absolute contraband) if they are destined for enemy territory or the enemy forces: “One. Arms of all kinds, their component parts and their accessories. "Two. Ammunition and parts thereof, bombs, torpedoes, mines and other types of projectiles; appliances to be used for the shooting or dropping of these projectiles; powder and explosives including detonators and igniting materials. "Three. Warships of all kinds, their component parts and their accessories. "Four. Military aircraft of all kinds, their component parts and their accessories; airplane engines. "Five. Tanks, armored cars and armored trains; armor plate of all kinds. "Six. Chemical substances for military purposes; appliances and machines used for shooting or spreading them. "Seven. Articles of military clothing and equipment. "Eight. Means of communication, signaling and military illumination and their component parts. "Nine. Means of transportation and their component parts. "Ten. Fuels and heating substances of all kinds, lubricating oils. "Twelve. Apparatus, tools, machines and materials for the manufacture or for the utilization of the articles and products named in numbers one to eleven." The following announcement was made by the German Government on Sept. 12, 1939: "The following articles and materials will be regarded as contraband (conditional contraband) subject to the conditions of article 24 of the Prize Law Code of August 28, 1939 (Reichsgesetzblatt part one page 1585): "Foodstuffs (including live animals) beverages and tobacco and the like, fodder and clothing; articles and materials used for their preparation or manufacture." Reichsgesetzblatt (1939) 1588; Department of State, I Bulletin, no. 13, p. 285 (Sept. 23, 1939). In declaring its contraband list in 1940, the Italian Government referred to the fact that the British and French lists went beyond the list announced in the Italian Laws of War of July 8, 1938, and it included all articles on the British and French lists. Decree 1056 of July 16, 1940, Gazzetta ufficiale, Aug. 9, 1940, no. 186, p. 3025; the Chargé d'Affaires ad interim in Rome (Reed) to the Secretary of State (Hull), no. 1970, Aug. 30, 1940, MS. Department of State, file 740.00112 European War 1939/1769. See also the Italian Embassy to the Department of State, no. 4930, June 11, 1940, ibid. /1522. Objections to the British and French contraband lists of 1939 were set forth by the Netherlands Government in notes to the Governments of the two countries in which it was asserted that by the inclusion, in addition to specified articles, of "articles necessary or convenient for their use; materials or ingredients serving in their manufacture" and "articles necessary or convenient for the production or use of such materials or ingredients", the field of goods considered contraband could be extended to the infinite. The distinction between absolute and conditional contraband was said to be based upon reason and to have long been recognized by international law, and it was protested that under these lists articles indispensable to the life of the whole nation in matters unrelated to the military apparatus could be treated as absolute contraband. It was insisted that the limitations imposed by international law, which directly affected the rights and interests of neutrals, should not be lost sight of and that, since the belligerent right to seize contraband was an exception to the principle of freedom of the seas, it should be interpreted in a restrictive manner. A similar note was sent to the German Government. Netherlands Orange Book, Summary of the Principal Matters Dealt with by the Ministry of Foreign Affairs in Connection with the State of War up till November 1939 and Suitable for Publication (1940) 19-20. The British Government replied on Nov. 20, 1939 to the Netherlands Minister in London stating that the list of absolute contraband could not be regarded as unduly extensive in view of the number of articles now regarded as of direct military use and particularly in view of the certainty that any such articles imported by Germany would be intended for military purposes. Adherence to the distinction between absolute and conditional contraband was promised. It was asserted: ". . . It is the undoubted right in international law of a belligerent Power to declare what articles it will consider as contraband, within the general definition of contraband as being any article of use for the prosecution of the war." The reply of the Netherlands Minister, Jan. 12, 1940, while recognizing that "the centralization and subordination of all the means of the nation to the purposes of war may involve certain consequences" as to rules regarding contraband which originated in a different epoch, stated that "These considerations . . . cannot justify the treatment as absolute contraband of goods or of materials which by their nature can serve the needs of the civil population as well as those of the armed force." While refraining from expressing an opinion on the statement in the British note (quoted ante), the Netherlands Minister expressed the belief that such an extreme extension as that adopted by Great Britain and France had the effect of nullifying article 2 of the Declaration of Paris, under which the neutral flag covers enemy goods with the exception of contraband, "by making almost all imaginable goods fall within the category of contraband". The British Ministry of Foreign Affairs (Ronald) to the Netherlands Minister to Great Britain (Van Verduynen), Nov. 20, 1939; Mr. van Verduynen to the British Secretary of State for Foreign Affairs, Jan. 12, 1940: Netherlands, Overzicht van de voornaamste in verband met den oorlogstoestand door het Ministerie van Buitenlandsche Zaken behandelde en voor openbaarmaking geschikte aangelegenheden, November 1939-April 1940 (Orange Book, Apr. 1940) 26-28. By a note of Oct. 25, 1939 to the British Ambassador in Moscow the Soviet Government protested against the inclusion in the British contraband list of articles for the civilian population. Times (London), Oct. 27, 1939, p. 7, col. 5; the Counselor of Embassy in London (Johnson) to the Secretary of State (Hull), no. 3727, Oct. 31, 1939, MS. Department of State, file 740.00112 European War 1939/511; the Chargé d'Affaires ad interim in Russia (Thurston) to Mr. Hull, no. 159, Nov. 19, 1939, ibid. /825. At the meeting of the Foreign Ministers of the American Republics held in Panamá, it was resolved on Oct. 3, 1939: "1. To register its opposition to the placing of foodstuffs and clothing intended for civilian populations, not destined directly or indirectly for the use of a belligerent government or its armed forces, on lists of contraband." Report of the Delegate of the United States of America to the Meeting of the Foreign Ministers of the American Republics, Held at Panamá, September 23-October 3, 1939 (Department of State Conference Ser. 44, 1940) 58-59. In a decision of December 14, 1939 the Prize Court of Hamburg candemned a cargo of woodpulp coming from Estonia and consigned to the United States, as absolute contraband (a stop for coal in enemy territory being planned), saying in part: of lists It may be considered as correct that the Zellstoff-Werke of InterpreReval manufacture exclusively such unbleached strong sulphite tation woodpulp and that this material normally serves in general for the manufacture of paper at paper mills. It is also correct that the use of such unbleached strong sulphite woodpulp for the manufacture of explosives is not possible without further processing. This, however, is not decisive. Mr. Almberg himself admits that theoretically such woodpulp may be used in the manufacture of explosives by dissolving the woodpulp, treating it with chloride, bleaching it and then drying it. 440083-43-vol, VII—3 This processing, termed by Mr. Almberg a "theoretical possibility" does not, however, lie beyond the limits of practicability. The convincing opinion of an expert, Dr. Gaertner, scientific adviser of the State Chemical Institute of Hamburg proves that in practice such reprocessing is being carried out to a great extent. In any case, whether or not it is a "substance for the manufacture of munitions, explosives, et cetera" within the meaning of Nos. 12 and 2 of the German list of absolute contraband can by no means be determined by the question of whether the material under investigation is specially suitable or even intended for such processing. Just as little may economic considerations as to its suitability play a decisive part, especially since in war-time special conditions prevailing sometimes require the use of measures which normally would be considered uneconomic but which are unavoidable during war. For the Prize Court the only criterion is the objective adaptability ("objektive Verwendbarkeit") of the material under consideration to the manufacture of articles and products listed as absolute contraband. The Minna, enclosure 3 in despatch 773, from the Consul General at Hamburg (Keblinger) to the Secretary of State (Hull), Jan. 30, 1940, MS. Department of State, file 740.00112 European War 1939/1110. A Swedish vessel carrying wood (squared timbers) bound from Scandinavia to England was captured and taken before the German Prize Courts on the ground that the wood was "material for fuel” and therefore conditional contraband. The courts held that these timbers for use in mines were not firewood, the Imperial Supreme Prize Court stating: When the Declaration of London in Art. 24 and the Prize Regulations No. 23 speak of fuel, this must be taken to mean such material as, according to the conditions of price and transportation, is really used for the purpose of fuel, since it is generally obtained prepared and transported to its destination for this object. ... After all, every kind of wood can be used as fuel. It cannot therefore be a question of this possibility. It is the objective character of the wood, as specified above, which is actually decisive. The Elida, 10 A.J.I.L. (1916) 916, 919-921; I Entscheidungen des Oberprisengerichts in Berlin (1918) 9. The same court in The Alfred Hage (June 18, 1915) held mining timber to be conditional contraband because it could be used as fuel without excessive economic loss. Ibid. 25; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 19. In 1940 the German Prize Court at Hamburg held that sawed timber and telegraph poles were contraband because they could be used in the construction of military equipment. The Consul General at Hamburg (Keblinger) to the Secretary of State (Hull), telegram 41, Feb. 16, 1940, MS. Department of State, file 740.00112 European War 1939/1059. Foodstuffs are ranked as conditional contraband and may be lawfully shipped to territories of belligerents when in fact not destined or intended as supplies for the belligerent government or its armed forces. Secretary Bryan to W. L. Green Commission Co., telegram of Jan. 12, 1915, MS. Department of State, file 763.72112/578. A similar rule was laid down in the unratified Declaration of London in article 24. See 1909 For. Rel. 323. See also United States contraband list of 1917 set forth ante, p. 23, and other lists referred to on p. 24; and see ante, pp. 19-20. In the case of The "Antiope" the Japanese Prize Court at Yokosuka, in 1905, and the Higher Prize Court, on appeal the following year, held a cargo of rock salt to be contraband. The salt was apparently intended for use in preserving fish for the Russian military forces. II Russ. and Jap. P.C. 389. The British Prize Court held that "foodstuffs" on the contraband list included sausage casings (The Cometa; The Salerno; The San José, II Br. & Col. Pr. Cas. 306, VI LI. Pr. Cas. 33 [1916]), and coffee (The Indianic and the Sydland, [1917] P. 161 n., V Ll. Pr. Cas. 267), but not borax (The Progreso, VI Ll. Pr. Cas. 371 [1917]). The Declaration of London provided in article 29: "Likewise the following may not be treated as contraband of war: “(1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30. "(2) Articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage." 1909 For. Rel. 318, 325. For correspondence concerning the exemption of hospital supplies from seizure as contraband during the World War of 1914-18, see 1914 For. Rel. Supp. 831-836; 1915 For. Rel. Supp. 1050-1054; 1916 For. Rel. Supp. 941-959. CARRIAGE OF CONTRABAND §615 A Netherlands vessel carrying coffee from the Netherlands Indies to Overt act Rotterdam and following a course set by the British Navy put into the British West African port of Freetown. There it appeared from remarks of the master that he had approached his crew with the idea of going to Stettin, Germany, but that all the crew refused to go. The vessel was seized and proceeded against for attempted carriage of contraband, but the Prize Court ordered the vessel released, it appearing that no overt act had been committed. Sir Henry Duke held that the master could not without the support of the crew have taken the vessel to Stettin. He said that, if the actual destination of the ship while at Freetown had been a German port, he would have condemned the ship, |