Art. 41.—If a vessel carrying contraband is released, she may 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.
Art. 42.—Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation.
Art. 43.—If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.
Art. 44.—A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions.
See Hautefeuille, Des droits et devoirs des nations neutres (2nd ed., 1858); Perels, Droit maritime international, traduit par Arendt (Paris, 1884); Moore, Digest of International Law (1906); L. Oppenheim, International Law (1907); Barclay, Problems of International Practice and Diplomacy (1907). See also Hall, International Law on Analogues of Contraband; Smith and Sibley, International Law as interpreted during the Russo-Japanese War, 1905, on “Malacca” and “Prinz Heinrich” cases (mails).
(T. Ba.)
[1] See Springbok case, 1866, 5 Wallace I.; on Doelwijk case see Brusa, Rev. gén. de droit international public (1897); Fauchille id. (1897), p. 291, also The Times, April 15, May 25, June 1, 1897.
CONTRACT (Lat. contractus, from contrahere, to draw together, to bind), the legal term for a bargain or agreement; some writers, following the Indian Contract Act, confine the term to agreements enforceable by law: this, though not yet universally adopted, seems an improvement. Enforcement of good faith in matters of bargain and promise is among the most important functions of legal justice. It might not be too much to say that, next after keeping the peace and securing property against violence and fraud so that business may be possible, it is the most important. Yet we shall find that the importance of contract is developed comparatively late in the history of law. The commonwealth needs elaborate rules about contracts only when it is advanced enough in civilization and trade to have an elaborate system of credit. The Roman law of the empire dealt with contract, indeed, in a fairly adequate manner, though it never had a complete or uniform theory; and the Roman law, as settled by Justinian, appears to have satisfied the Eastern empire long after the Western nations had begun to recast their institutions, and the traders of the Mediterranean had struck out a cosmopolitan body of rules and custom known as the Law Merchant, which claimed acceptance in the name neither of Justinian nor of the Church, but of universal reason. It was amply proved afterwards that the foundations of the Roman system were strong enough to carry the fabric of modern legislation. But the collapse of the Roman power in western Christendom threw society back into chaos, and reduced men’s ideas of ordered justice and law to a condition compared with which the earliest Roman law known to us is modern.