Abandonment of voyage

but that under the circumstances the master's intention was not sufficient to make Stettin the destination.

The Twee Ambt, [1920] P. 413, X Ll. Pr. Cas. 165.

A neutral vessel carrying a cargo of contraband to a Russian military base in 1905 was forced by unseaworthiness to put into a Japanese port, where she was captured. After consideration of the facts the Japanese Prize Court held that the vessel had not abandoned the original object of the voyage and was liable to condemnation.

The "Lydia", II Russ. and Jap. P.C. 359.

The German Prize Court in 1917 condemned a cargo of contraband captured on board a Netherlands vessel. The goods were being returned from the Netherlands to England to be placed at the disposal of British prize authorities pursuant to an agreement reached between the shippers and British authorities at the time the goods were allowed by the British to pass. The plea of the claimant that at the time of the seizure the voyage to England had been abandoned owing to conditions of weather and danger of mines and that it was intended to put back to the Netherlands, was rejected. The Imperial Supreme Prize Court of Berlin said:

It is not necessary to discuss the question whether such a change of purpose on the part of the captain can be considered at all according to Prize Law. When the latter abandoned his attempt to enter the mouth of the Thames, because of unfavorable weather and the danger of mines, and reversed his course, the journey was by that act not abandoned in law or in fact. [Translation.]

The Oostzee (Sept. 20, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 347, 349; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 261, 263–264.

A Netherlands vessel chartered to an Argentine firm to carry coal from Great Britain to Buenos Aires, apparently for the use of German war vessels, put into Teneriffe for bunker coal. Being unable to get it, the vessel sold its cargo to a British firm there and started back for Rotterdam. When the vessel put in at Falmouth proceedings were brought against her for condemnation. The Prize Court held that she was not liable to condemnation since the intention to carry contraband to the enemy had been abandoned before seizure. Sir Samuel Evans said:

The correct finding, in my view, is that the vessel, being a neutral vessel, was carrying contraband, namely, coal, intended to be delivered to enemy agents, or enemy vessels of war encountered on the voyage; and that she was so carrying the contraband with false papers, with a suspicious supercargo, with a false destina

tion, and in circumstances amounting to fraud in regard to belligerents.

The general rule which has been acted upon is that when a neutral vessel carries contraband goods they are confiscable if captured in delicto; and that the vessel also, if it belongs to the same owner, or if the owner has been implicated in a transaction veiled over with false papers or other deceitful devices, is subject to the same penalty. But when the goods have been deposited at the port or place of destination, the ship and cargo upon the return voyage are exempt from the penalty. . . . But exceptions were made at the beginning of the last century where the outward voyage was made under false papers or with a false destination, or in circumstances where the voyage had been conceived and contrived so as to deceive and practise a fraud upon a belligerent. In these latter cases the vessel and cargo have been held to be affected upon the return voyage also.

Upon this aspect of the present case, I am of opinion that the result, according to the principles and rules of international law, is that inasmuch as the original intention to carry and deliver the contraband goods to the enemy had been frustrated and abandoned, and the goods themselves had been sold and delivered to other buyers when the vessel was seized, she had become freed from any liability to confiscation.

By reason of his conduct, however, I order that he do bear and pay the costs and expenses of and incident to the capture and detention and also of and incident to these prize proceedings.

An appeal by the Crown was dismissed by the Judicial Committee of the Privy Council.

The Alwina, [1916] P. 131, 140, 143–144, 149; [1918] A.C. 444; V Ll. Pr. Cas. 127, 138–149, 151.

In 1940 the British Crown asked for the condemnation of a cargo of goods shipped on an Italian vessel at an Egyptian port prior to the outbreak of war, and bound for Germany. The vessel was seized by British naval authorities shortly after the outbreak of war, the cargo at that time being classified by the British Government as absolute contraband. In the course of its opinion, ordering the release of the goods, the court said:

The claimants, the Sinai Mining Company, Ld., an English company, contend on the other hand that at the material date, namely, the date of the seizure by the Crown, the property in the goods remained in them, and that as the shipment took place in the ordinary course of business, under a pre-war contract, neither the contract nor the shipment being made in anticipation of war, the goods are not subject to condemnation, not

Return voyage

withstanding their enemy destination: see, for example, The Miramichi, approved in The Parchim. It was pointed out by the Attorney-General, on behalf of the Crown, that that contention could not be accepted without qualification where the goods seized were, as in this case, absolute contraband under the Order in Council; but having regard to all the circumstances of this case and, in particular, to the fact that the claimants themselves arranged for the diversion of this cargo to an English port, he was content that the case should be decided upon the basis that the goods should be released to the claimants if the property was held to be in them at the date of the seizure.

The court proceeded to find that the claimants retained the property in the goods and consequently ordered their release to them.

The Gabbiano, [1940] P. 166, 168.

In overruling a decision of the Vladivostok Prize Court, the Russian Supreme Prize Court in 1904 said:

The delivery by the "Allanton" on her first voyage of a cargo of Cardiff coal to the Japanese port of Sasebo cannot serve as sufficient ground for the condemnation of the cargo subsequently shipped from Muroran to Singapore, as, under Article 11 of the Prize Regulations, vessels of neutral nationality are only liable to condemnation in the event of their being found in the act of conveying contraband to the enemy or to an enemy port, and not merely if they had on a previous occasion carried contraband to the enemy.

The "Allanton", I Russ. & Jap. P.C. 1, 15.

It was provided in article 38 of the Declaration of London that "A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end." 1909 For. Rel. 318, 326.

The British Order in Council of October 29, 1914 announced the following modification of the declaration:

A neutral vessel, with papers indicating a neutral destination, which, notwithstanding the destination shown on the papers, proceeds to an enemy port, shall be liable to capture and condemnation if she is encountered before the end of her next voyage.

1914 For. Rel. Supp. 262. To similar effect, see French and Russian decrees of Nov. 6 and Dec. 8, 1914, 9 A.J.I.L. Spec. Supp. (July 1915) 26, 35.

In the "Maritime Rights Order in Council, 1916", denouncing the Declaration of London, Great Britain reaffirmed this rule as conforming to the law of nations. 1916 For. Rel. Supp. 414.

The earlier British, French, and Russian orders, dated Aug. 20, Aug. 25, and Sept. 1, 1914, provided for detention or capture on the return voyage in such cases. See 1914 For. Rel. Supp. 220 and 222; 9 A.J.I.L. Spec. Supp. (July 1915) 32.

The German Prize Ordinance, dated Apr. 18, 1915, announcing amendments in retaliation for British orders, after stating the rule of article 38 of the Declaration of London, added:

“... If, however, the vessel carried contraband to the enemy contrary to the indications of the ship's papers, it shall be liable to capture and condemnation until the end of the war." Reichsgesetzblatt (1915) 227, 230; 9 A.J.I.L. Spec. Supp. (July 1915) 46.

An American vessel which had carried a cargo of horses from the United States to the British colonial port of Tortola was seized by a French privateer on her return voyage. In 1800 the French prize court condemned the vessel and cargo on the ground that the vessel lacked a proper crew list and that the cargo consisted of sugar produced on enemy territory. Passing on this as one of the French Spoliation Claims, the United States Court of Claims held that the claimants were entitled to indemnity, stating:

The transportation of contraband articles to one of the belligerents is in itself an assault for the time being upon the other belligerents, in the fact that it may furnish them with the weapons of war and thereby increase the resources of their power as against their adversary; and for that reason, upon the broad ground of self-preservation incident to nations as well as individuals, the parties against whom the quasi assault is made have the right to defend themselves against the threatened blow by seizing the weapon before it reaches the possession.and control of their enemy.

The seizure of contraband is not only punishment, but it is also prevention, and the paramount purpose of its exercise is prevention, just as in self-defense on the part of persons it is to protect; but when the act is accomplished, the damage suffered, and the danger passed, then the incidents of self-defense

cease. ...

Upon that general doctrine of the subject of contraband there is a qualification which was recognized by the courts at the time the capture of this ship was made. The effect of that Exceptions qualification is that the outgoing voyage must be free from the taint of fraud, and misrepresentation made or practiced by the persons in charge of the vessel upon the rights of the belligerents.

To justify the condemnation in this proceeding it is not enough that the ship carried contraband on an outward voyage; it must appear that associated with that act there were other derelictions on the part of the captured vessel, in violation of the belligerent rights of the seizing party.

In this case it is not shown that any fraud was practiced on the outward voyage, and failing in that element the court must hold that the vessel had been relieved of all responsibility on its return voyage incident to the transportation

Place of capture

of contraband on its outward voyage, and that the claimants are entitled to indemnity.

The Sloop Ralph, 39 Ct. Cls. 204, 207-209 (1904).

ARTICLE 37. A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination.

Declaration of London, 1909 For. Rel. 318, 326.

Absolute contraband

DESTINATION

ENEMY TERRITORY AND CONTINUOUS VOYAGE

§616

It has long been settled that contraband of war is subject to seizure and condemnation. The perplexing questions have related not to the nature of the penalty to be visited on contraband but rather to the kinds of goods to be denominated contraband and under what circumstances. Goods, even war materials, are not to be regarded as contraband ipso facto. They become such only because of their destination, i.e., to a belligerent. On this latter question difficulties frequently arise by reason of the fact that the goods may be consigned to a neutral country but with a belligerent country as the ultimate or supposed ultimate destination, hence the origin and application of the doctrine of continuous voyage.

The United States Naval War Code of 1900 stated:

[34] The term "contraband of war" includes only articles having a belligerent destination and purpose.

1903 U. S. Naval War College, Int. Law Discussions 82.

Article 34 of the United States Naval War Code of 1900 continued: Articles of the first class [absolute contraband], destined for ports of the enemy or places occupied by his forces, are always contraband of war.

1903 U. S. Naval War College, Int. Law Discussions 82.

The Department of State in a circular issued in 1914 said:

When absolute contraband is destined to one of the countries at war, whether to the government or to an individual of that country, it is subject to seizure and confiscation by any of the opposing belligerents when beyond the territory of the neutral government from which it is shipped.

MS. Department of State, file 763.72111/161: 1914 For. Rel. Supp. 274, 276