(1) On the one hand, article 30 recognises with regard to absolute contraband the application of the doctrine of continuous voyages—both to circuitous and indirect carriage of contraband—by enacting that: "absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land."
(2) On the other hand, article 35 categorically rejects the doctrine of continuous voyages with regard to conditional contraband by enacting that "conditional contraband is not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy,[846] and when it is not to be discharged in an intervening neutral port."
(3) However, in cases where the enemy country has no seaboard, article 36—in contradistinction to the provisions of article 35—expressly recognises the doctrine of continuous voyages for conditional contraband also by enacting that "notwithstanding the provisions of article 35, conditional contraband, if shown to have the destination referred to in article 33, is liable to capture in cases where the enemy country has no seaboard."
[846] The rule of article 35 came into question for the first time during the Turco-Italian war. In January 1912, the Carthage, a French mail-steamer plying between Marseilles and Tunis, was captured for carriage of contraband by an Italian torpedo-boat and taken to Cagliari, because she had an aeroplane destined for Tunis on board. As the destination of the vessel was neutral, and as, according to article 24, No. 8, of the Declaration of London aeroplanes are conditional contraband, France protested against the capture of the vessel, Italy agreed to release her, and the parties arranged to have the question as to whether the capture of the vessel was justified settled by the Permanent Court of Arbitration at the Hague.
III CONSEQUENCES OF CARRIAGE OF CONTRABAND
See the literature quoted above at the commencement of § [391].
Capture for Carriage of Contraband.
§ 404. It has always been universally recognised by theory and practice that a vessel carrying contraband may be seized by the cruisers of the belligerent concerned. But seizure is allowed only so long as a vessel is in delicto, which commences when she leaves the port of starting and ends when she has deposited the contraband goods, whether with the enemy or otherwise. The rule is generally recognised, therefore, that a vessel which has deposited her contraband may not be seized on her return voyage. British and American practice, however, has hitherto admitted one exception to this rule—namely, in the case in which a vessel has carried contraband on her outward voyage with simulated and false papers.[847] But no exception has been admitted by the practice of other countries. Thus, when in 1879, during war between Peru and Chili, the German vessel Luxor, after having carried a cargo of arms and ammunition from Monte Video to Valparaiso, was seized in the harbour of Callao, in Peru, and condemned by the Peruvian Prize Courts for carrying contraband, Germany interfered and succeeded in getting the vessel released.
[847] The Nancy (1800), 3 C. Rob. 122; the Margaret (1810), 1 Acton, 333. See Holland, Prize Law, § 80. Wheaton, I. § 506, note 2, condemns this practice; Hall, § 247, p. 696, calls it "undoubtedly severe"; Halleck, II. p. 220, defends it. See also Calvo, V. §§ 2756-2758.
It must be specially observed that seizure for carriage of contraband is only admissible on the Open Sea and in the maritime territorial belts of the belligerents. Seizure within the maritime belt of neutrals would be a violation of neutrality.