This free list is of great importance to neutral trade, more particularly as it not only comprises such articles as are not susceptible of use in war, but likewise a number of articles, the possibility of the use of which in war is so remote as practically to make them not susceptible of use in war. The list guarantees to a number of industries and trades of neutral States freedom from interference on the part of belligerents, and it is to be expected that in time the list will be increased.
Articles destined for the use of the carrying Vessel, or to aid the Wounded.
§ 396a. Besides the seventeen groups of articles contained in the free list, there are two other groups of free articles.
Firstly, those articles which serve exclusively to aid the sick and wounded. They, according to article 29, No. 1, of the Declaration of London, may never be treated as contraband even if their destination is hostile. They may, however, in case of urgent military necessity and, subject to the payment of compensation, be requisitioned if they are destined to territory belonging to or occupied by the enemy or to the armed forces of the enemy.
Secondly, articles intended for the use of the vessel in which they are found or for the use of her crew and passengers during the voyage. Hostile destination being essential before any kinds of articles may be considered contraband, those articles which are carried by a vessel evidently for her own use or for the use of her crew and passengers can never be contraband, as is now specially stipulated by article 29, No. 2, of the Declaration of London. Merchantmen frequently carry a gun and a certain amount of ammunition for the purpose of signalling, and, if they navigate in parts of the sea where there is danger of piracy, they frequently carry a certain amount of arms and ammunition for defence against an attack by pirates. It will not be difficult either for the searching belligerent man-of-war or for the Prize Court to ascertain whether or no such arms and ammunition are carried bona fide.
Contraband Vessels.
§ 397. A neutral vessel, whether carrying contraband or not, can herself be contraband. Such is the case when she has been built or fitted out for use in war and is on her way to the enemy. Although it is the duty of neutrals—see article 8 of Convention XIII., and above §§ [334] and [350]—to employ the means at their disposal to prevent the fitting out, arming, or the departure of any vessel within their jurisdiction, which they have reason to believe is intended to cruise or to engage in hostile operations against a belligerent, their duty of impartiality does not compel them to prevent their subjects from supplying a belligerent with vessels fit for use in war except where the vessel concerned has been built or fitted out by order of a belligerent. Subjects of neutrals may therefore—unless prevented from so doing by Municipal Law, as, for instance, subjects of the British Crown by §§ 8 and 9 of the Foreign Enlistment Act, 1870—by way of trade supply belligerents with vessels of any kind, provided these vessels have not been built or fitted out by order of the belligerent concerned. According to the practice which has hitherto prevailed, such vessels, being equivalent to arms, used to be considered as absolute contraband.[829] And it made no difference whether or no they were fit for use as men-of-war, it sufficed that they were fit to be used for the transport of troops and the like.
[829] The Richmond (1804), 5 C. Rob. 325. See also Twiss, II. § 148, and Holland, Prize Law, § 86.
According to article 22, No. 10, article 24, No. 6, and article 34 of the Declaration of London the law concerning contraband vessels will be the following:—A distinction is made between warships on the one hand, and, on the other, vessels and the like generally. According to article 22, No. 10, warships, including their boats and their distinctive component parts of such a nature that they can only be used on a vessel of war, may be treated as absolute contraband without notice. On the other hand, according to article 24, No. 6, vessels, craft, and boats of all kinds, and, further, floating docks, parts of docks and their component parts may only be treated as conditional contraband, but may be so treated without notice. And it must be specially observed that whereas with regard to articles of conditional contraband generally, there is a legal presumption established as to their hostile destination in case they are consigned to enemy authorities or to a contractor established in the enemy country, who, as a matter of common knowledge, supplies articles of this kind to the enemy, article 34 expressly exempts merchant vessels from this presumption in case it is sought to prove that they themselves are contraband.