§ 406a. Hitherto the practice of the several States has differed—see above, § [405]—with regard to the question as to whether a vessel which was not herself liable to condemnation might be allowed to proceed on her voyage on condition that she handed over the contraband carried by her to the captor. Great Britain and some other States answered it in the negative, but several States in the affirmative. The Declaration of London, although it upholds the general rule that, whatever may be the ultimate fate of the vessel, she must be taken into a port of a Prize Court, admits two exceptions to the rule:—
(1) According to article 44, a vessel which has been stopped for carrying contraband and which is not herself liable to be confiscated on account of the proportion of contraband on board, may—not must—when the circumstances permit it, be allowed to continue her voyage in case she hands over the contraband cargo to the captor. In such a case the captor is at liberty to destroy the contraband handed over to him. But the matter must in any case be brought before a Prize Court. The captor must therefore enter the delivery of the contraband on the log-book of the vessel so stopped, and the master of the latter must give duly certified copies of all relevant papers to the captor.
(2) According to article 54, the captor may—see below, § [431]—exceptionally, in case of necessity, demand the handing over, or may proceed himself to the destruction, of any absolute or conditional contraband goods found on a vessel which is not herself liable to condemnation, if the taking of the vessel into the port of a Prize Court would involve danger to the safety of the capturing cruiser or to the success of the operations in which she is engaged at the time. But the captor must, nevertheless, bring the case before a Prize Court. He must, therefore, enter the captured goods on the log-book of the stopped vessel, and must obtain duly certified copies of all relevant papers. If the captor cannot establish the fact before the Prize Court that he was really compelled to abandon the intention of bringing in the carrying vessel, he must be condemned (see article 51) to pay the value of the goods to their owners if the goods were contraband or if they were not. And the same is valid in case (article 52) the seizure or destruction of the goods is held by the Prize Court to have been justifiable, but not the capture itself of the carrying vessel.
CHAPTER V UNNEUTRAL SERVICE
I THE DIFFERENT KINDS OF UNNEUTRAL SERVICE
Hall, §§ 248-253—Lawrence, §§ 260-262—Westlake, II. pp. 261-265—Phillimore, III. §§ 271-274—Halleck, II. pp. 289-301—Taylor, §§ 667-673—Walker, § 72—Wharton, III. § 374—Wheaton, §§ 502-504 and Dana's note No. 228—Moore, VII. §§ 1264-1265—Bluntschli, §§ 815-818—Heffter, § 161A—Geffcken in Holtzendorff, IV. pp. 731-738—Ullmann, § 192—Bonfils, Nos. 1584-1588—Despagnet, Nos. 716-716 bis—Rivier, II. pp. 388-391—Nys, III. pp. 675-681—Calvo, V. §§ 2796-2820—Fiore, III. Nos. 1602-1605, and Code, Nos. 1836-1840—Martens, II. § 136—Kleen, I. §§ 103-106—Boeck, Nos. 660-669—Pillet, p. 330—Gessner, pp. 99-111—Perels, § 47—Testa, p. 212—Dupuis, Nos. 231-238, and Guerre, Nos. 172-188—Bernsten, § 9—Nippold, II. § 35—Holland, Prize Law, §§ 88-105—U.S. Naval War Code, articles 16 and 20—Hautefeuille, II. pp. 173-188—Ortolan, II. pp. 209-213—Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-205—Marquardsen, Der Trent-Fall (1862), pp. 58-71—Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897), pp. 42-55—Takahashi, International Law during the Chino-Japanese War (1899), pp. 52-72—Vetzel, De la contrebande par analogie en droit maritime internationale (1901)—Atherley-Jones, Commerce in War (1906), pp. 304-315—Hirschmann, Das internationale Prisenrecht (1912), §§ 31-32—See also the monographs quoted above at the commencement of § [391], and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, articles 45-47.
Unneutral service in general.
§ 407. Before the Declaration of London the term unneutral service was used by several writers with reference to the carriage of certain persons and despatches for the enemy on the part of neutral vessels. The term has been introduced in order to distinguish the carriage of persons and despatches for the enemy from the carriage of contraband, as these were often confounded with each other. Since contraband consists of certain goods only and never of persons or despatches, a vessel carrying persons and despatches for the enemy is not thereby actually carrying contraband.[858] And there is another important difference between the two. Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive assistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. Those writers who did not adopt the term unneutral service, on account of its somewhat misleading character, preferred[859] the expression analogous of contraband, because in practice maritime transport for the enemy was always treated in analogy with, although not as, carriage of contraband.
[858] This was recognised in the case of the Yangtsze Insurance Association v. Indemnity Mutual Marine Assurance Company, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.