§ 9. En cas de saisies ou répressions non justifiées pour cause de contrebande ou de transport, l'État du capteur sera tenu aux dommages-intérêts et à la restitution des objets.
§ 10. Un transport parti avant la déclaration de la guerre et sans connaissance obligée de son imminence n'est pas punissable.
Penalty according to the Declaration of London for Carriage of Contraband.
§ 406. The Declaration of London offers by articles 39 to 44 a settlement of the controversy respecting the penalty for carriage of contraband which represents a fair compromise.
The chief rule is (article 39) that contraband goods, whether absolute or conditional contraband, may be confiscated. The carrying vessel may (article 40) likewise be confiscated if the contraband reckoned either by value, weight, volume, or freight, forms more than half the cargo. If the latter be not the case, and if the carrying vessel be therefore released, she may (article 41) be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national Prize Court and the custody of the ship and cargo during the proceedings. But whatever be the proportion between contraband and innocent goods on a vessel, innocent goods (article 42) which belong to the owner of the contraband and are on board the same carrying vessel, may be confiscated.
If a vessel carrying contraband sails before the outbreak of war (article 43), or is unaware of a declaration of contraband which applies to her cargo, or has no opportunity of discharging her cargo after receiving such knowledge, the contraband may only be confiscated on payment of compensation, and the vessel herself and her innocent cargo may not be confiscated nor may the vessel be condemned to pay any costs and expenses incurred by the captor.[857] But there is a presumption which is not rebuttable with regard to the mens rea of the vessel. For according to the second paragraph of article 43 a vessel is considered to have knowledge of the outbreak of war or of a declaration of contraband if she leaves an enemy port after the outbreak of hostilities, or if she leaves a neutral port subsequent to the notification of the outbreak of hostilities or of the declaration of contraband to the Power to which such port belongs, provided such notification was made in sufficient time.
[857] It is obvious that the vessel must be brought into a port and before a Prize Court if the captor desires to seize the contraband against compensation. The question as to whether article 44 applies to such a case, and whether, therefore, the neutral vessel may be allowed to continue her voyage if the master is willing to hand over the contraband to the captor, must be answered in the affirmative, provided that the contraband, reckoned either by value, weight, volume, or freight, forms less than half the cargo. For article 44 precisely treats of a case in which the vessel herself is not liable to condemnation on account of the proportion of the contraband on board (see article 40).
The question of pre-emption of conditional contraband is not mentioned by the Declaration of London. There is, however, nothing to prevent the several maritime Powers from exercising pre-emption in mitigation of their right of confiscation; the future must show whether or no they will be inclined to do this.
Seizure of Contraband without Seizure of the Vessel.