First World War Centennial

CHAPTER XVIII

GENERAL RULES—ABSOLUTE CONTRABAND

IN the interest of neutral nations, which in ordinary times must compose by far the majority of civilized states, these pages have set out some of the incongruities and un­satisfactory features of contraband, without more particularly discussing recent and present practice than to call attention to the three classes—"absolute contraband," "free goods," and "ancipitis usus"—into which it has been divided.

It is now proposed to deal with the subject specifically by referring to a few general rules, giving examples of contraband assigned to each of the above classes, and noting certain extensions of the doctrine. General rules may be summed up as follows:

1. Contraband is limited to goods or commodities shipped by a neutral for enemy use.

2. The carrying of contraband is in defiance of belligerent requirements, and belligerents (it must be regretfully stated) are by inter­national consent placed for this purpose in control of all trade routes. A belligerent can therefore confiscate in belligerent or open seas (not in neutral waters) the captured cargo of a vessel bound to an enemy port, or which will touch at an enemy port, on its way to a neutral destination—provided the goods are such as become contraband when destined for the enemy.

3. The fact that a cargo of contraband is intended for a neutral or bound to a neutral port will not help the owner, if it appears that the forbidden goods are to be trans­shipped to the enemy. This has to do with the doctrine of the continuous voyage. It appears to make no difference whether one or more neutral ports intervene before the goods are delivered to the enemy, or whether they teach the latter by land or sea carriage.

4. There are certain articles (ancipitis usus) which can be used for war or not, which it is yet clear would be of great advantage to the enemy, if shipped to places held by its armies or navies, to fortified places, or to the govern­ment and its subsidiaries. Such commodi­ties are known as conditional contraband, and are exposed to seizure and confiscation.

5. A vessel cannot be captured which has delivered contraband and is homeward bound.

6. All goods belonging to the owner of contraband and forming part of the same cargo may be confiscated, and the vessel itself may be contraband.

7. Vessels bearing contraband must be taken to a prize court.

There is some recognition given to belligerent rights to preempt neutral vessels and cargo not clearly contraband; Phillimore writes more at length on the subject than later English authorities.

These regulations are given, not as crystal­lized and authoritative, but as presenting reasonable ground for recognition in the fact that they are offered by the Declaration of London, and have been accepted for some time by a respectable group of Powers. That much is unsettled as to their final form and interpretation will readily appear to anyone who reviews the matter historically.

Meantime, if there is doubt in regard to general rules, there is absolute confusion in the classification of goods and commodities that may or may not fall under the law of contraband. Taking these up in order we find eminent publicists listing most of the following articles, because of their special adaptation to military use, as absolute contraband. The list is affirmed in toto by the Declaration of London:

1. Arms, including arms for sporting pur­poses, and their parts; 2. Projectiles, charges, and cartridges of all kinds and their parts; 3. Powder and explosives, specially prepared for use in war; 4. Gun mountings, limber boxes, limbers, military wagons, field forges, and their parts; 5. Military clothing and equipment; 6. Military harnesses; 7. Saddle, draught, and pack animals suitable for use in war; 8. Articles for camp equipment and their parts; 9. Armor plates; 10. War-ships, including boats and their distinctive com­ponent parts of such a nature that they can only be used on a vessel of war; 11. Im­plements and apparatus designed exclusively for the manufacture of munitions of war, and for the manufacture or repair of arms or of war material for use on land or sea.

No notice is required in the case of the above articles, but to these is attached a first class of conditional contraband which becomes absolute only "after special declara­tion and notification," viz.:

1. Foodstuffs; 2. Forage and grain; 3. Clothing, fabrics for clothing, and boots and shoes for use in war; 4. Gold and silver, etc.; 5. Vehicles of all kinds available for use in war and their parts; 6. Vessels and craft, docks and their parts; 7. Railway material and stock, material for telegraph and tele­phone; 8. Balloons and flying machines and accessories; 9. Fuel and lubricants; 10. Powder and explosives (not specially pre­pared for war use); 11. Barbed wire and implements for cutting, etc.; 12. Horseshoes and shoeing material; 13. Harness and saddler; 14. Field-glasses, telescopes, chronom­eters, and all kinds of nautical instruments.

These lists have been given in full that they may be studied in connection with the notices given by the present warring Powers. On August 5, 1914, the United States Ambassador in London received from the British Foreign Office a list declared by it to be absolute and conditional contraband, especially during the present war. Section 1 included the list referred to above as absolute contraband of the first class, which is practically that of the London Declaration with the exception that an additional group of articles was substituted for those marked 11, the latter being designated as 12.

The new group (11) included aeroplanes, airships, balloons, and aircraft of all kinds and their component parts, together with accessories and articles recognized as in­tended for use in connection with balloons and aircraft. Schedule II., the list referred to above as conditional contraband (becom­ing absolute on declaration), included thir­teen groups instead of the fourteen of the London Declaration, the eighth group, com­posed of balloons and flying machines, being eliminated and made, as has been noted, group 11 under Schedule I.

On August 11 and September 9, 1914, the French and Russian governments re­spectively adopted the schedules for absolute contraband earlier proclaimed by the British government. It remains for us in another chapter to note the changes that have followed with the succeeding months.