The Declaration of London entirely confirms these old customary rules, but does not recognise the above-mentioned British exception. Article 37 enacts that 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. Article 38 enacts 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.
Penalty for Carriage of Contraband according to the Practice hitherto prevailing.
§ 405. In former times neither in theory nor in practice have similar rules been recognised with regard to the penalty of carriage of contraband. The penalty was frequently confiscation not only of the contraband cargo itself, but also of all other parts of the cargo, together with the vessel. Only France made an exception, since according to an ordonnance of 1584 she did not even confiscate the contraband goods themselves, but only seized them against payment of their value, and it was not until 1681 that an ordonnance proclaimed confiscation of contraband, but with exclusion of the vessel and the innocent part of the cargo.[848] During the seventeenth century this distinction between contraband on the one hand, and, on the other, the innocent goods and the vessel was clearly recognised by Zouche and Bynkershoek, and confiscation of the contraband only became more and more the rule, certain cases excepted. During the eighteenth century the right to confiscate contraband was frequently contested, and it is remarkable as regards the change of attitude of some States that by article 13 of the Treaty of Friendship and Commerce[849] concluded in 1785 between Prussia and the United States of America all confiscation was abolished. This article provided that the belligerent should have the right to stop vessels carrying contraband and to detain them for such length of time as might be necessary to prevent possible damage by them, but such detained vessels should be paid compensation for the arrest imposed upon them. It further provided that the belligerent could seize all contraband against payment of its full value, and that, if the captain of a vessel stopped for carrying contraband should deliver up all contraband, the vessel should at once be set free. I doubt whether any other treaty of the same kind was entered into by either Prussia or the United States.[850] And it is certain that, if any rule regarding penalty for carriage of contraband was generally recognised at all, it was the rule that contraband goods could be confiscated. But there always remained the difficulty that it was controversial what articles were contraband, and that the practice of States varied much regarding the question as to whether the vessel herself and innocent cargo carried by her could be confiscated. For beyond the rule that absolute contraband could be confiscated, there was no unanimity regarding the fate of the vessel and the innocent part of the cargo. Great Britain and the United States of America hitherto confiscated the vessel when the owner of the contraband was also the owner of the vessel; they also confiscated such part of the innocent cargo as belonged to the owner of the contraband goods; they, lastly, confiscated the vessel, although her owner was not the owner of the contraband, provided he knew of the fact that his vessel was carrying contraband, or provided the vessel sailed with false or simulated papers for the purpose of carrying contraband.[851] Some States allowed such vessel carrying contraband as was not herself liable to confiscation to proceed with her voyage on delivery of her contraband goods to the seizing cruiser,[852] but Great Britain[853] and other States insisted upon the vessel being brought before a Prize Court in every case.
[848] See Wheaton, Histoire des Progrès du Droit des gens en Europe (1841), p. 82.
[849] Martens, R. IV. p. 42. The stipulation was renewed by article 12 of the Treaty of Commerce and Navigation concluded between the two States in 1828; Martens, N.R. VII. p. 619.
[850] Article 12 of the Treaty of Commerce, between the United States of America and Italy, signed at Florence on February 26, 1871—see Martens, N.R.G. 2nd Ser. I. p. 57—stipulates immunity from seizure of such private property only as does not consist of contraband: "The high contracting parties agree that in the unfortunate event of war between them, the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture, or seizure, on the high seas or elsewhere, by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party." See above, § [178].
[851] See Holland, Prize Law, §§ 82-87.
[852] See Calvo, V. § 2779.
[853] See Holland, Prize Law, § 81.
As regards conditional contraband, those States which made any distinction at all between absolute and conditional contraband, as a rule confiscated neither the conditional contraband nor the carrying vessel, but seized the former and paid for it. According to British practice[854] hitherto prevailing, freight was paid to the vessel, and the usual compensation for the conditional contraband was the cost price plus 10 per cent. profit. States acting in this way asserted a right to confiscate conditional contraband, but exercised pre-emption in mitigation of such a right. Those Continental writers who refused to recognise the existence of conditional contraband, denied, consequently, that there was a right to confiscate articles not absolutely contraband, but they maintained that every belligerent had, according to the so-called right of angary,[855] a right to stop all such neutral vessels as carried provisions and other goods with a hostile destination of which he might have made use and to seize such goods against payment of their full value.