return voyage when it consists in the shipowner's being privy to the carriage of the contraband, and it is difficult to see how the use of false papers, though a graver offence, brings in a different principle. Westlake, vol. 2, p. 292.

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. 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. The Declaration of London * mentioned British exception.

Oppenheim, vol. 2, pp. 506–507.

**

*
**

does not recognize the above

A vessel which carries Contraband Goods becomes liable to Detention from the moment of quitting port with the Goods on board, and continues to be so liable until she has deposited them. After depositing them, the Vessel, in ordinary cases, ceases to be liable. As a general rule, therefore, a Commander should not detain a Vessel for carrying Contraband Goods unless he finds them actually on board. But Simulated Papers are an aggravation of the offence. If, therefore, a Commander meets with a Vessel on her return Voyage, and ascertains that on her outward Voyage she carried Contraband Goods with Simulated Papers, he should detain her; and the fact that the return Cargo has not been purchased by the proceeds of the outward Contraband Cargo makes no difference.

Holland, pp. 23 and 24.

Seizure can not be made on the ground of a previous carrying of contraband which has already been fully completed.

German Prize Rules, 1909, Article 40.

You will not seize a ship by reason of carriage of contraband on a previous occasion and in point of fact at an end.

French Naval Instructions, 1912, sec. 47.

Article 38, Declaration of London, is substantially identical with section 19, Austro-Hungarian Manual, 1913.

Contra.

The "Margaret," 1 Acton, 333.-This was the case of a vessel which, on her outward voyage from Baltimore, carried contraband goods to a French colony. Subsequently she touched at various other ports and was captured on her return voyage.

Held, that where a vessel carries contraband on the outward voyage, she is liable to condemnation on the return voyage even though the return cargo was not purchased with the proceeds of the contraband.

Ship and cargo were both condemned.

*

The "Imina," 3 C. Rob., 167.-This was a case of a vessel originally destined for the hostile port of Amsterdam but whose destination was changed, before capture, to the neutral port of Embden. The vessel was restored, and the court said: " * *if the goods are not taken in delicto, and in the actual prosecution of such a voyage [to a hostile port], the penalty is not now generally held to attach."

Contra, if bad faith characterizes the previous voyage.

The "Nancy," 3 C. Rob., 126.-In this case the owners of the cargo appeared to have shipped contraband articles to an enemy's port on the outward voyage, with papers showing a false destination and instructions to conceal the real destination.

Held that the claimant should not be permitted to give further proof of the returned cargo, which was purchased with the proceeds of the contraband articles. The cargo was condemned.

See, to the same effect, The Rosalie and Betty, 2 C. Rob., 343.

Exception.

--The Ariel" 3 C. Rob., 122.-This was the case of an alleged Danish vessel which on her outward voyage to Batavia carried contraband goods under circumstances tending to create the suspicion that she was under Dutch control. She was seized on her return voyage and her cargo, which was the proceeds of the outward cargo, was condemned.

The court held that in distant voyages, like those to the East Indies, conducted as this voyage had been, in a suspicious manner, the rule should not apply, that in cases of contraband, the return voyage should not be connected with the outward voyage.

Accord, but with exception.

Carrington et al. v. The Merchants Insurance Co., 8 Peters, 495.— The court said: "But when the contraband goods have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has not been usual to apply the penalty to the ship or cargo upon the return voyage, although the latter may be the proceeds of the contraband. And the same rule would seem by analogy to apply to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it had terminated; although there is not any authority directly in point. But in the highest prize courts of England, while the distinction between the outward and homeward voyage is admitted to govern, yet it is established that it exists only in favor of neutrals who conduct themselves with fairness and good faith in the arrangements of the voyage. If, with a view to practice a fraud upon the belligerent, and to escape from his acknowledged right of capture and detention, the voyage is disguised.

and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage is not allowed to purge away the guilt of the fraudulent conduct of the neutral."

See also, to same effect. The Franklin, 3 C. Rob., 217; The Christianberg, 6 C. Rob., 376; The Rosalie and The Elizabeth, 4 C. Rob., note to table of cases; The Baltic, 1 Acton, 25.

The "Allanton," Russian and Japanese Prize Cases, vol. 1, p. 1.This was a case of a British ship which carried contraband (coal) to a Japanese port, and was captured while on a voyage from that port to Singapore.

Held by the Russian Supreme Court that the delivery of the contraband by the vessel on her first voyage was not sufficient ground for condemnation of the cargo shipped from the Japanese port to Singapore.

The "Eastry," Russian and Japanese Prize Cases, vol. 2, p. 299.This was a case of a neutral vessel which on a former occasion had carried a cargo of contraband to Vladivostock and was captured while carrying a cargo of coal to a neutral port.

Held that as the vessel was not carrying contraband at the time of capture she should be released.

CONTRABAND GOODS LIABLE TO CONDEMNATION.

Contraband goods are liable to condemnation. Declaration of London, Article 39.

** nor shall it be lawful to sell, exchange or alienate the cargo or any part thereof, until legal process shall have been had against the prohibited merchandizes, and sentence shall have passed declaring them liable to confiscation.

Treaty of Amity and Commerce, concluded between the United States and Sweden, April 3, 1783, Article XIII.

Contra, but with right of preemption.

And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination.

Treaty of Amity and Commerce, concluded between the United States and Prussia. July 11, 1799, Article XIII.

The articles of contraband, before enumerated and classified, which may be found in a vessel bound for an enemy's port, shall be subject to detention and confiscation.

*

*

Treaty of Peace. Amity, Navigation, and Commerce concluded between the United States and New Granada (Colombia). December 12, 1846, Article XIX.

The articles of contraband before enumerated and classified which may be found in a vessel bound to an enemy's port shall be subject to detention and confiscation.

*

* *

Treaty of Peace, Friendship. Commerce, and Navigation concluded between the United States and Bolivia, May 13, 1858, Article XIX.

** contraband transported to an enemy destination shall be confiscated.

When goods are once clearly shown to be contraband, confiscation to the captor is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of pre-emption on reasonable terms. But, generally, to stop contraband goods, would, as Vattel observes, prove an ineffectual relief, especially at sea. The penalty of confiscation is applied, in order that the fear of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, to seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself.

Kent, Vol. I, pp. 147–148; Vattel, b. 3, c. 7, sec. 113.

If further inquiry shows that the owner intended to deliver them [goods capable of direct military as well as civil use] directly into military hands for military use, he loses them, not simply from their inherent contraband nature, but by reason of his own unneutral act. Although nothing be developed as to the owner's intent, yet if the condition of the port of destination, or the character and state of the war, make it satisfactorily appear that they will, in all probability, go directly into military use, or directly tend to relieve an enemy from hostile pressure, the right of the belligerent to intercept them may be exercised solely for those reasons. In such case, it rests on his right to intercept aid to his enemy, though the act of the neutral carrier is not unlawful; and the captor, therefore, pays the neutral his freight.

Dana's Wheaton, Note 226.

The noxious articles themselves, (if decided to be contraband,) are invariably condemned, and no defense or plea can save them from confiscation, when their character as contraband, and their destination to a hostile port or country, are admitted or established.

Halleck, p. 570.

Preemption.

The ancient custom of preemption, by the belligerent, of the property of the subjects of another state, as practiced about the middle of the seventeenth century, had a much wider operation and very different meaning than is now attributed to it. By the French ordonnance of 1584, article sixty-nine, contraband was subjected, not to confiscation, but to preemption. But, according to the modern use of this term, it is applied to articles not subject to confiscation, as contraband in themselves, but being ambigui usus are made subject to seizure, and to be condemned to the use of the belligerent, he paying their value with a reasonable mercantile profit,-which, by the practice of the British prize courts, is usually fixed at ten per cent. If the goods so seized are contraband, the carrying of them is