Insurances on articles contraband of war. The great question is, for what object are articles, ancipitis usus, destined? The best prac tical test of this question is the nature of the port to which they are sent. Enumeration of articles held to be contraband of war. judgments then pronounced, that the English lawyer must principally learn what articles ancipitis usus are contraband of war, and what are not, except in so far as particular treaties or conventions may have introduced an exception in respect to any one of them. The great general principle to be borne in mind in connection with this subject is, that these articles, ancipitis usus, may be either contraband or not, according to the particular object for which they are destined; the main question is, were they intended for the ordinary uses of life, or were they going with a highly probable destination for military use? If the former, they are not contraband; if the latter, they are. The best practical test of this question is the nature of the port to which they are sent: if the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port; but if the great predominating character of the port, like Brest in France, or Portsmouth in England, be that of a port of naval equipment, it will be presumed that the articles were going for military use, though it is possible they might have been applied to civil consumption. (s) Ships, naval stores, timber, and all other materials which serve directly for the purposes of ship building, are now generally held to be contraband of war, unless excepted by particular treaties. (t) Sail-cloth is held to be universally contraband, even when destined to ports of mere mercantile naval equipment. (u) Tallow was in the same case held not to be contraband unless destined for a port, such as Brest, of mere hostile equipment. (v) Cordage is, generally speaking, contraband; and so are anchors and all other armamenta navis. (w) Sulphur (s) The Jonge Margaretha, 1 Rob. Rep. 159. See also The Neptunus, 3 Rob. Adm. Rep. 108 (t) See Rutherforth's Ins., lib. i. c. 9. In the commercial treaty between England and the United States, A.D. 1794, an exception is made in favour of unwrought iron and fir planks, all other materials used in ship building (v) Ibid. (w) Jonge Margaretha, 1 Rob. Rep. 159. articles contra and saltpetre as being main ingredients of gunpowder, have Insurances on been almost invariably regarded as contraband, and were band of war. admitted to be so even by the terms of the armed neutrality. (x) Tar, pitch, and hemp, were held contraband by our courts of admiralty in the last war. (y) Provisions, generally speaking, are not contraband, especially if they are the produce of the country which exports them, unless they are directly sent for the supply of a military force, or in relief of besieged or blockaded places. (z) In the last war with France, the national convention by a law of 9th May, 1793, decreed that neutral vessels laden with provisions destined to an enemy's port should be arrested and carried into France; and England, by way of reprisals, on the 8th of June, 1793, ordered a similar detention of all neutral vessels going to France and laden with corn, meal, or flour. (a) The law of nations in relation to this subject, was declared by Sir W. Scott to be, that provisions are not generally contraband, but may become so under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. (b) Contraband articles are said to be of an infectious nature, so as to contaminate the whole cargo belonging to the same owners; by which figurative language is meant, that all the merchandise which the same owner may have embarked in the same ship, is rendered liable to seizure and confiscation by his having on board articles of contraband. This consequence, however, does not, except in aggravated cases, extend to the ship, unless she also belongs to the owner of the goods. In ordinary cases the only loss sustained by the shipowner from having contraband articles on board, is the loss of freight and expenses. If, however, the ship and goods are (x) Azuni, del Dritto Marittimo, cap. ii. art. 5. vol. ii. pp. 137, 138. ed. 1797. (y) The Maria, 1 Rob. Rep. 287. (z) Kent's Comm., vol. i. p. 135. ed. 1844, collecting the authorities. (a) In the case of The Jonge Margaretha, 1 Rob. Rep. 159. (b) Kent's Comm., vol. i. p. 137. ed. 1844. The courts of the United States have very generally adopted the principles and followed the decisions of Lord Stowell on questions of prize, contraband, &c. Contraband is of an infectious nature; i. e. it affects with illegality all the goods on board belonging to the same owner. Insurances on articles contraband of war. All insurances on contraband of war are void and incapable of being enforced in the courts of the belligerent country. Aliter, in the courts of a neutral state. Contraband trade, in its proper sense, can only be car ried on by neu trals in time of war. owned by the same person, or if the contraband articles are sought to be protected by a false destination or false papers, the contagion of the contraband will extend to the whole of the ship and all the cargo belonging to the same owner, which will both be subject to confiscation. (c) All insurances on articles contraband of war are wholly void and incapable of being enforced in the courts of the belligerent country. (d) If, however, effected by or for neutrals and sought to be enforced in the court of a neutral state, the case would be different, for it is not deemed unlawful in a neutral by his own government to be engaged in a contraband trade. The contraband articles, indeed, are liable to seizure and confisca- · tion at the hands of the enemy; but the neutral is never punished by his own sovereign for his contraband shipments. The insurance, therefore, by a neutral of articles contraband of war being per se a valid contract, may be enforced in the courts of the neutral country, provided the nature of the trade and of the goods was disclosed to the underwriter, or provided there be just ground, from the circumstances of the trade or otherwise, to presume that he was duly informed thereof. (e) Contraband trade, in the proper sense of the word, can only be carried on by neutrals in time of war: hence, where a clause contained in the commercial treaty between this country and Portugal of 1810, excepted from the reciprocal liberty of commerce announced by the treaty all articles contraband of war, this was held to apply only to importation in time of war; and a policy effected in this country on arms and ammunition exported from Great Britain to Madeira in the dominions of Portugal in time of peace, was held valid notwithstanding the clause. (ƒ) (c) The Stadt Embden, 1 Rob. Rep. 23. The Jonge Tobias, ibid. 277. The Franklin, 3 Rob. Rep. 217. The Edward, 4 Rob. Rep. 601. The Ranger, 6 Rob. Rep. 125. These cases establish the rule as stated in the text; of course this rule is liable to modification by treaties. Thus, in the commercial treaties of the United States with the new republics of South America, it is stipulated that contra band articles shall not affect the rest of the cargo or the vessel, but shall be left free to the owners. Kent's Comm., vol. i. p. 143. ed. 1844. (d) Marshall on Ins. 75. See Gibson v. Service, 5 Taunt. 435. 1 Marshall's Rep. 119. (e) Kent's Comm., vol. iii. p. 267. ed. 1844. (ƒ) Wilbraham v. Wartnaby, 1 Lloyd & Wels. 144. ART. 3. Insurances on Voyages or Trading Adventures carried on in violation of Blockade, &c. § 274. It is an invariable principle of the law of nations, that if a neutral violates a blockade by carrying supplies to, or in any way trading with, a blockaded port, he is guilty of an offence against the laws of war, and thereby renders his ship and cargo liable to confiscation; all insurances, consequently, upon voyages or trading adventures commenced or carried out with a fixed purpose of violating, or in actual violation of the laws of blockade, are wholly void and incapable of being enforced. of of As questions turning upon the violation of the laws blockade have still a practical interest, it will not be out place briefly to inquire in what a breach of blockade consists. The consequences of such breach being highly penal, the law of nations has been very careful to determine this point, and has declared that it can only take place under the three following conditions: sists: three conditions under which alone it can First, the port must be in an actual state of blockade, and take place. such fact must be clearly established to the satisfaction of the court. Secondly, the neutral must have had due previous notice of the existence of such blockade. Thirdly, he must have been guilty of some distinct act of violation, either by coming into or out of the port with a cargo laden after the commencement of the blockade, or by attempting so to do after knowledge that the blockade exists. § 275. A port is in a state of blockade when it is invested by the power which attacks it with a number of vessels stationed sufficiently near the port to make the entry EVIDENTLY dangerous. (g) This last condition is absolutely necessary, in (g) The Mercurius, 1 Rob. Rep. 67. The Betsey, ibid. 78. The Stert, 4 Rob. Rep. 65. See also the definition given in the convention between Great Britain and Russia on 17th June, A port is not blockade unless in a state of there is an at tacking squadron sufficiently near to make entry evidently dangerous. Insurances on voyages or order to constitute a legal blockade, for there is no blockade trading adven- of any port where the forces of the attacking power are not so near as to render dangerous the attempt to enter. tures in violation of blockade, &c. If, however, the attacking force have been dispersed by Dispersion of storm, the commander retaining the purpose of returning imdron by storm, mediately to the station, and using due diligence for that does not legalise purpose, this does not amount to a suspension of the blockade, attempt at entry. Dispersion, however, by coercion of foreign force does. A blockade must be universal, or its breach will not be illegal. Neutral must have notice of the fact of the blockade, in nor justify an attempt to enter, on the part of any vessel which knew the reason of such absence, but every such attempt will be regarded as a breach of the blockade. (h) If, however, the blockade be raised, either wholly or partially, whether by the coercion of a superior force, or by the deliberate act of the belligerent state, or even by the remissness of its cruisers, the trade of neutrals ought to be free; the only criterion the neutral trader has of the existence of a blockade, is the presence of a sufficient attacking force, and if this be removed by either of the last mentioned causes, the neutral who enters such port for commercial purposes shall not be charged with a breach of blockade. (i) A blockade is properly a uniform and universal exclusion of all vessels; if, therefore, some vessels are permitted to pass, others have a right to infer that the blockade is raised and in such case, as there is no valid blockade, there can be no breach thereof. (j) § 276. In the second place, it is absolutely necessary that the neutral trader shall have notice of the blockade before his ship or goods can be confiscated for violating it. It is immait illegal in him terial in what way he comes to the knowledge of the blockade; if it actually exists, and he has knowledge of it, he is bound order to make to violate it. Notification to the neutral government is, generally speaking, notice not to violate it. Even in cases where he may not have actual knowledge of it, yet, if it have been notified to his to the neutral government by the blockading power, he will not be permitted to aver ignorance of it; for notice to foreign governments is held to be notice to all their subjects, to whom it is trader. Notification to one state, after a reasonable (h) The Frederick, Molke, 1 Rob. Rep. 72. The Columbia, ibid. 130. The Hoffnung, 6 Rob. Rep. 116, 117 (i) The Hoffnung, 6 Rob. Rep. 116. (j) The Rolla, 6 Rob. Rep. 372. |