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INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE 

WAR 

I. MARITIME CAPTURE 

International law is at once on its trial and in the moulding as it has 
never been before. It is just a hundred years since the last world-wide 
war was fought; and to that period one must go back to trace the source 
of the principal rules and practices of the law of war, and especially of 
maritime warfare. In the interval, the form of international law and 
much of its substance have been entirely changed. From indefinite 
practice and varying usage, imperfectly systematized by text writers, it 
has passed into the condition of definite rules and uniform law, for- 
mulated by international conventions. But most of this definite law has 
not yet stood the test of practice. So far as the rules of maritime warfare 
are concerned, it is largely consolidated in conventions made at inter- 
national conferences during the last seven years. These conventions 
have indeed been already applied in the war of Italy and the Balkan 
Powers against Turkey, but they were not searchingly tried in those 
contests, which were determined by land operations. Strictly, the 
conventions are not binding in this war, because they are intended to 
apply only in wars in which all the belligerents are parties, and Servia 
and Montenegro have not ratified any of the 1907 agreements; but, in 
fact, the great Powers are professing to act according to the international 
legislation. 

The substance of the law was less changed by the Hague conventions 
than by the Declaration made at Paris in 1856 by the signatories of 
peace at the end of the Crimean War, which has become an integral part 
of the jus gentium. The four rules of the Declaration abolish pri- 
vateering, protect neutral goods in enemy vessels and enemy goods in 
neutral vessels, not being contraband of war, and require blockades to be 
effective. They are an attempt toward applying to maritime warfare 
the French Revolution theory of war, that it is a struggle between 

17 



18 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

States and not between the peoples of States. The attack on private 
property, which was an essential part of war on the sea, has been con- 
siderably checked, but, at the same time, it remains the general rule, 
unlike the position in land warfare; and the restrictions which have 
been imposed upon the old license are narrowly interpreted. Private 
enemy ships may still be captured, together with the enemy cargo on 
them, whether it consist of goods useful or useless for war; and further 
enemy goods of any character may be captured on the ships of the 
belligerent and his allies; while contraband goods may be captured on 
any ships. Again, while privateering is formally abolished, the determi- 
nation of belligerent nations to use- all their possible force against the 
enemy has led to the creation of an auxiliary to the regular navy, in the 
form of converted merchantmen, i. e., ocean liners which, on the out- 
break of hostilities, are transformed into warships. The institution has 
been legalized by one of the Hague conventions (No. VII), though no 
agreement has yet been reached upon whether the conversion may take 
place on the high seas or only in a port of the belligerent. The employ- 
ment of armed merchantmen shows that the attempts to humanize war 
are hardly and doubtfully won, and the apparent advances made in times 
of peace are likely to be overthrown by the pressure of the actual con- 
flict. 

So much by way of prelude. To come now to the application and 
development of the law of maritime capture in the war, so far as it has 
been exemplified in the first few months of hostilities. 

The subject may be divided into two main heads — the treatment of 
enemy ships and cargoes and the treatment of neutral ships and cargoes. 
Each heading will be separately treated, although certain questions fall 
within or between the two divisions. 

The principal rule in regard to enemy ships, as has been stated, is 
that they may be captured by the belligerent's public ships, including 
his converted merchantmen, and either condemned as good prize to the 
captor or destroyed by them on capture. The crippling of the enemy's 
sea-borne commerce, which is a national asset as much as it is private 
wealth, is the justification of the belligerent right which falls directly 
upon private property. The desire, however, to reduce as far as possible 
the shock to international trade, which a full application of belligerent 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 19 

rights immediately on the outbreak of war would involve, led, during the 
19th century to the habit of granting days of grace to enemy ships found 
in a belligerent's port when hostilities broke out. The period of grace 
varied in the different contests and was not always accorded; and the 
Hague Conference of 1907, which formulated a convention on the status 
of enemy merchantmen on the outbreak of war, likewise failed to make 
the practice a binding regulation. Article 1 of the Convention declares 
that it is desirable that a period shall be given to enemy vessels found in 
the belligerent's ports, or coming there in ignorance of hostilities, to 
leave freely for their own or a neutral country, and it does not fix any 
period for which this indulgence is to be granted. The convention, 
therefore, required for its completion some legislative or executive act 
of the belligerent country; and, accordingly, when hostilities broke 
out on August 4th between England and Germany, an Order in Council 
was issued by the English Crown, stating the manner in which it was 
proposed to apply the Hague agreement. The Order in Council reads as 
follows : 

His Majesty being mindful, now that a state of war exists between 
this Country and Germany, of the recognition accorded to the practice 
of granting "days of grace" to enemy merchant ships by the Convention 
relative to the Status of Enemy Merchant Ships at the Outbreak of 
Hostilities, signed at The Hague on the 18th October, 1907, and being 
desirous of lessening, so far as may be practicable, the injury caused by 
war to peaceful and unsuspecting commerce, is pleased, by and with the 
advice of His Privy Council, to order, and it is hereby ordered, as fol- 
lows: — 

1. From and after the publication of this Order no enemy merchant 
ship shall be allowed to depart, except in accordance with the provisions 
of this Order, from any British port or from any ports in any Native 
State in India, or in any of His Majesty's Protectorates, or in any State 
under His Majesty's protection or in Cyprus. 

2. In the event of one of His Majesty's Principal Secretaries of State 
being satisfied by information reaching him not later than midnight on 
Friday, the seventh day of August, that the treatment accorded to 
British merchant ships and their cargoes which at the date of the out- 
break of hostilities were in the ports of the enemy or which subsequently 
entered them is not less favourable than the treatment accorded to 
enemy merchant ships by Articles 3 to 7 of this Order, he shall notify the 
Lords Commissioners of His Majesty's Treasury and the Lords Com- 
missioners of the Admiralty accordingly, and public notice thereof shall 



20 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

forthwith be given in the "London Gazette," and Articles 3 to 8 of this 
Order shall thereupon come into full force and effect. 

3. Subject to the provisions of this Order, enemy merchant ships which 
(i.) At the date of the outbreak of hostilities were in any port in 

which this Order applies; or 
(ii.) Cleared from their last port before the declaration of war, and, 
after the outbreak of hostilities, enter a port to which this 
Order applies, with no knowledge of the war: 

shall be allowed up till midnight (Greenwich mean time), on Friday, the 

fourteenth day of August, for loading or unloading their cargoes, and for 

departing from such port: 
Provided that such vessels shall not be allowed to ship any contraband 

of war, and any contraband of war already shipped on such vessels must 

be discharged. 

4. Enemy merchant ships which cleared from their last port before the 
declaration of war, and which with no knowledge of the war arrive at a 
port to which this Order applies after the expiry of the time allowed by 
Article 3 for loading or unloading cargo and for departing, and are per- 
mitted to enter, may be required to depart either immediately, or within 
such time as may be considered necessary by the Customs Officer of the 
port for the unloading of such cargo as they may be required or specially 
permitted to discharge. 

Provided that such vessels may, as a condition of being allowed to 
discharge cargo, be required to proceed to any other specified British 
port, and shall there be allowed such time for discharge as the Customs 
Officer of that port may consider to be necessary. 

Provided also that, if any cargo on board such vessel is contraband of 
war or is requisitioned under Article 5 of this Order, she may be required 
before departure to discharge such cargo within such time as the Customs 
Officer of the port may consider to be necessary; or she may be required 
to proceed, if necessary under escort, to any other of the ports specified 
in Article 1 of this Order, and shall there discharge the contraband under 
the like conditions. 

5. His Majesty reserves the right recognised by the said Convention 
to requisition at any time subject to payment of compensation enemy 
cargo on board any vessel to which Articles 3 and 4 of this Order apply. 

6. The privileges accorded by Articles 3 and 4 are not to extend to 
cable ships, or to sea-going ships designed to carry oil fuel, or to ships 
whose tonnage exceeds 5,000 tons gross, or whose speed is 14 knots or 
over, regarding which the entries in Lloyd's Register shall be conclusive 
for the purposes of this Article. Such vessels will remain liable on 
adjudication by the Prize Court to detention during the period of the 
war, or to requisition, in accordance, in either case, with the Convention 
aforesaid. The said privileges will also not extend to merchant ships 
which show by their build that they are intended for conversion into 
warships, as such vessels are outside the scope of the said Convention, 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 21 

and are liable on adjudication by the Prize Court to condemnation as 
prize. 

7. Enemy merchant ships allowed to depart under Articles 3 and 4 will 
be provided with a pass indicating the port to which they are to proceed, 
and the route they are to follow. 

8. A merchant ship which, after receipt of such a pass, does not follow 
the course indicated therein will be liable to capture. 

9. If no information reaches one of His Majesty's Principal Secretaries 
of State by the day and hour aforementioned to the effect that the 
treatment accorded to British merchant ships and their cargoes which 
were in the ports of the enemy at the date of the outbreak of hostilities, 
or which subsequently entered them, is, in his opinion, not less favourable 
than that accorded to enemy merchant ships by Articles 3 to 8 of this 
Order, every enemy merchant ship which, on the outbreak of hostilities, 
was in any port to which this Order applies, and also every enemy 
merchant ship which cleared from its last port before the declaration of 
war, but which, with no knowledge of the war, enters a port to which this 
Order applies, shall, together with the cargo on board thereof, be liable 
to capture, and shall be brought before the Prize Court forthwith for 
adjudication. 

10. In the event of information reaching one of His Majesty's Prin- 
cipal Secretaries of State that British merchant ships which cleared from 
their last port before the declaration of war, but are met with by the 
enemy at sea after the outbreak of hostilities, are allowed to continue 
their voyage without interference with either the ship or the cargo, 
or after capture are released with or without proceedings for adjudication 
in the Prize Court, or are to be detained during the war or requisitioned 
in lieu of condemnation as prize, he shall notify the Lords Commissioners 
of the Admiralty accordingly, and shall publish a notification thereof 
in the "London Gazette," and in that event, but not otherwise, enemy 
merchant ships which cleared from their last port before the declaration 
of war, and are captured after the outbreak of hostilities and brought 
before the Prize Courts for adjudication, shall be released or detained or 
requisitioned in such cases and upon such terms as may be directed in 
the said notification in the "London Gazette." 

11. Neutral cargo, other than contraband of war, on board an enemy 
merchant ship which is not allowed to depart from a port to which this 
Order applies, shall be released. 

12. In accordance with the provisions of Chapter III of the Conven- 
tion relative to certain Restrictions on the Exercise of the Right of 
Capture in Maritime War, signed at The Hague on the 18th October, 
1907, an undertaking must, whether the merchant ship is allowed to 
depart or not, be given in writing by each of the officers and members of 
the crew of such vessel, who is of enemy nationality, that he will not, 
after the conclusion of the voyage for which the pass is issued, engage 
while hostilities last in any service connected with the operation of the 



22 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

war. If any such officer is of neutral nationality, an undertaking must 
be given in writing that he will not serve, after the conclusion of the 
voyage for which the pass is issued, on any enemy ship while hostilities 
last. No undertaking is to be required from members of the crew who 
are of neutral nationality. 

Officers or members of the crew declining to give the undertakings re- 
quired by this Article will be detained as prisoners of war. 

And the Lords Commissioners of His Majesty's Treasury, the Lords 
Commissioners of the Admiralty, and each of His Majesty's Principal 
Secretaries of State, and all Governors, Officers, and Authorities whom 
it may concern are to give the necessary directions herein as to them may 
respectively appertain. 

The main scheme of the Order in Council is to carry out the provisions 
of the Hague convention, but it is notable that in Article 6 it excepts from 
the privilege of days of grace not only cable ships and oil tank ships, but 
also vessels of more than 5,000 tons or capable of a speed of more than 
fourteen knots an hour. No such category of vessels is referred to in the 
convention, which excepts only from its scope vessels which show by 
their build (French: construction) that they are intended to be con- 
verted into cruisers. But it is reasonable that a belligerent should 
retain in its ports any ships which might be of use as transports or 
auxiliaries of the regular navy, even though they are not themselves 
fitted for conversion into warships. As between England and Germany, 
however, the rules of the Order in Council did not become operative, 
because the British Government failed to receive within the time fixed 
by the Order satisfactory assurances upon the proposed treatment of 
English vessels seized in German ports. As the official statement in- 
dicates, there appears to have been some confusion in the interchange 
of messages through a minister of a neutral country. 

On the night of August 4th 1914, the Secretary of State received the 
following notice from the German Ambassador: — 

"The Imperial Government will keep merchant vessels flying 

the British flag interned in German harbours, but will liberate them 

if the Imperial Government receive a counter undertaking from the 

British Government within forty-eight hours." 

On August 5th a copy of the Order in Council issued on August 4th as 

to the treatment of enemy merchant vessels in British ports at the date 

of the outbreak of hostilities was communicated to the Ambassador of 

the United States in London, who was then in charge of German interests 

in this country, with a request that he would be so good as to cause 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAB 23 

enquiry to be made of the German Government as to whether the 
terms of Articles III. to VIII. of the Order in Council constituted an 
undertaking of the nature the German Government required, and under 
which they would liberate merchant vessels flying the British flag in- 
terned in German harbours. 

On August 7th a communication was received from the United States 

Embassy that the United States Minister at Stockholm had sent the 

following telegram signed by the United States Ambassador at Berlin: — 

" Please state if England has issued Proclamation that she gives 

permission to enemy ships to leave British ports until midnight, 

August 14th. If this is so, Germany will issue corresponding orders. 

Reply through German Legation, Stockholm." 

The United States Embassy added that they did not believe that this 
telegram was a reply to the message which had been transmitted to 
Berlin. 

On enquiry at the United States Embassy shortly before midnight it 
was ascertained that no further communication had been received from 
Berlin. 

The Secretary of State for Foreign Affairs has therefore no informa- 
tion as to the treatment accorded to British merchant ships and their 
cargoes in German ports, and has accordingly addressed the undermen- 
tioned notification to the Lords Commissioners of the Treasury and to 
the Lords Commissioners of the Admiralty. 



Foreign Office, S. W., 

Midnight, August 7th, 1914. 
My Lobds, 

I have the honour to state that no information has reached me that 
the treatment accorded to British merchant ships and their cargoes 
which were in German ports at the date of the outbreak of hostilities or 
which subsequently entered them is not less favourable than that 
accorded to enemy merchant ships by Articles III. to VIII. of the Order 
in Council issued on the 4th day of August, 1914,with reference to enemy 
ships being in British ports at the outbreak of hostilities or subsequently 
entering them. Articles III. to VIII. of the said Order in Council will 
therefore not come into operation. 

I have the honour to be, 

My Lords, 
Your Lordships' most obedient humble servant, 

E. Geey. 

In consequence of this somewhat lame conclusion of their diplomatic 
efforts, the Powers were thrown back upon the obligatory provisions of 
the convention, and each of them exercised over the ships of the other 



24 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

found in their ports at the outbreak of war the right of seizure without 
any period of grace. It would be arguable to deduce from the second 
article of the Hague convention that it was bound up with Article 1 and 
imposed detention in lieu of confiscation only in cases where vessels were 
entitled to days of grace, and have not actually been able to take ad- 
vantage of the facilities. But both England and Germany have adopted 
a more indulgent interpretation and are subjecting to mere detention 
the enemy vessels and their cargo which were taken in port when war 
broke out and not allowed to leave. The detained vessels are liable to 
requisition by the State, but, if any are so taken, their owners must be 
compensated at the end of the war with the full value, supposing the 
ship is not returned, and indemnified for any damage incurred in the 
use, supposing it is returned. It was resolved in England to bring up 
all vessels seized in port for adjudication in a prize court, and orders are 
made simply for their detention by the marshal. The judge of the prize 
court (Sir Samuel Evans, who is normally President of the Admiralty 
Division of the High Court), at the first sitting of the court, questioned 
whether he was entitled to condemn them as enemy property, but the 
representative of the Crown only asked for detention; and, though the 
question may be subsequently raised in case Germany should not grant 
reciprocal treatment, it has been assumed that Article 2 of the conven- 
tion, though not perhaps obligatory, should be applied. The order made 
by the prize court judge in the first case of the kind which came before 
him declared that the ship was properly seized as property of the enemy, 
and, upon the application of the Crown, it was ordered that it should be 
detained by the marshal till further orders. (The Chile.) The detained 
ships pass into the possession of the Crown but do not change ownership, 
and for that reason any judicial condemnation was avoided. Third 
parties having claims against the vessels will be able to prosecute them 
at the end of hostilities, either by an action in rem or by personal 
action against the owners. 

German vessels, however, if captured at sea, have been treated as 
liable to the full belligerent right of confiscation, although they were 
seized while in ignorance of the outbreak of hostilities. Germany and 
Russia had made reservations at The Hague in 1907 to Article 3 of the 
convention, which provided that enemy vessels taken in these circum- 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 25 

stances should only be detained, and, as Germany at the outbreak of 
hostilities failed to satisfy England about the grant of reciprocal treat- 
ment, she lost the opportunity given her in the Order in Council of 
saving such part of her merchant marine as was on the high seas at the 
outbreak of war. Nearly one hundred of her ships were captured at sea 
straightway by English cruisers, and will be brought before the different 
prize courts established in different parts of the Empire. 

The English prize courts will have to determine before long whether 
certain seizures were made in port or at sea, within the meaning of the 
Hague convention, where the German vessel was taken when approach- 
ing a harbor or dock or when in territorial waters. "Port" is used for 
fiscal purposes in England in a very wide sense, and every portion of the 
territorial waters around the coast falls within the limits of some port; 
but, for the interpretation of the Hague articles, a narrower construc- 
tion has already been judicially put on the word "port" as a place where 
ships load and unload, which is the commercial and popular construc- 
tion. The question arose in the case of The Mowe, a German sailing 
ship, which, on August 5th, was seized by an English gunboat while 
passing up the Firth of Forth from a creek at Morrisonshaven, where 
she had laid up for the night before war was declared, to Granton, where 
she was directed to call for orders. It was urged that as she was within 
the limits of the fiscal port of Leith during the voyage she must be 
deemed to be taken in port and could not be confiscated. But the Presi- 
dent rejected this plea and condemned her. In the course of his judg- 
ment, after deciding that the enemy owner might appear and argue 
his case, he said: 

I will now proceed to deal with the substance of the claim of the 
owner in the present case. He contends that his vessel cannot be con- 
demned as prize. Was his vessel captured at sea, or seized in port? It 
was argued for him that he was seized in port, and therefore ought 
only to be detained during the war. For the Crown, on the other hand, 
it was contended that the vessel was captured at sea, and ought to be 
condemned. I have sufficiently stated the facts. 

It was urged that the vessel was seized within the port of Leith, and, 
alternatively, that she was taken within territorial waters, and not 
"on the high seas," and therefore is not confiscable: (see art. 3 of the 
Sixth Hague Convention, to which Germany did not agree, and under 
which her citizens cannot benefit). In this Convention I am of opinion 



26 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

that the word "port" must be construed in its usual and limited popular 
or commercial sense as a place where ships are in the habit of coming for 
the purpose of loading or unloading, embarking or disembarking. It 
does not mean the fiscal port. The ports of Morrisonshaven, Granton, 
and Bo'ness, I was informed, are within the fiscal port of Leith, but they 
are all separate ports in the ordinary sense. The vessel was not seized 
in any of such "ports" as the term is so understood, and as it seems to 
me to be used in the Convention. She was not in a port from which, if 
days of grace had been arranged, she could be said to "depart" ("Sor- 
tir"). Alternatively, it was alleged, but not proved, that she was taken 
in "territorial waters," and that therefore she was not captured on the 
high seas. But I will assume that she was within territorial waters when 
the capture was made. In my view that is wholly immaterial. 

The Sixth Hague Convention does not refer to "territorial waters." 
A vessel might be in territorial waters for scores of miles, either inno- 
cently or nefariously, and pass numerous ports, without any intention 
to enter any of them. It is idle to say that on this account she would be 
free from capture. Where the Hague Conventions intend to deal with 
territorial waters they are expressly mentioned as distinguished from 
ports; for example, in Convention XII, arts. 3 and 4, and Convention 
XIII, arts. 2, 3, 9, 10, &c, the words "les eaux territoriales" are used in 
contradistinction to "les ports": (Cf. also the Declaration of London, 
art. 37, where territorial waters are described as "les eaux des belliger- 
ants"). "En mer," which is the phrase used in art. 3 of the Sixth Con- 
vention, is altogether inapt to indicate "territorial waters." 

The German cruisers, which seized a much smaller number of British 
merchantmen, have usually sunk their prizes because of their inability 
to send them into a port. A number of steam trawlers were sunk on 
both sides in the North Sea. Deep sea fishing vessels of this character 
are not entitled to the immunity from capture granted to small coasting 
ships and fishing smacks, and the exigencies of the naval service fre- 
quently render it impossible to bring them in for adjudication. The 
enemy State can not make any objection to this destruction of its ves- 
sels, provided that the crews and passengers, if any, are taken off, be- 
cause, as between the belligerents, the property passes on capture; but 
a neutral merchant whose innocent cargo on the destroyed vessel has 
been lost is entitled to full compensation. (See The Ostee, 9 Moore 
P. C. 150 and The Leucade, Spinks, 217). The Germans, therefore, will 
presumably have to compensate a number of American cargo owners 
whose property was laden on English vessels sunk in the southern seas. 
In several cases, the capture and destruction of prizes were the work 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAE 27 

of converted merchantmen, but no question has so far been raised upon 
the legality of the conversion at sea by any belligerent or any neutral 
State. The court will have to give a judicial interpretation of the article 
in Hague Convention No. VI which excepts from the restriction of the 
full belligerent right of capture vessels which show by their build that 
they are intended to be converted into warships. The question is to be 
argued in the case of the German liner Kronprinzessin Cecilie, which 
was seized in Falmouth on the outbreak of war. An article of another 
Hague Convention limiting the right of capture in the case of fishing 
and coasting vessels has already been judicially construed. By Article 3 
of Convention No. XI of 1907 "vessels employed exclusively in coast 
fisheries, or small boats employed in local trade, are exempt from cap- 
ture. . . . This exemption ceases as soon as they take any part what- 
ever in hostilities." The President of the Prize Court had to consider 
whether this rule applied to the case of a German sailing cutter (The 
Berlin) which was captured by a British cruiser 70 miles off the Scottish 
coast and 500 miles from her home port. In holding that the vessel was 
properly captured because she could not be regarded as exclusively em- 
ployed in coastal fishing, he, however, expressly upheld as a binding 
rule of international law the immunity of small fishing vessels which are 
genuinely so employed, and adopted the opinion on this point of the 
United States Supreme Court in the Paquete Habana (175 U. S. 677). 
The conclusion of his judgment may be quoted: 

In this country I do not think any decided and reported case has 
treated the immunity of such vessels as a part or rule of the law of na- 
tions (vide the Young Jacob and Johanna, 1 C. Rob. 20, and the Liesbet 
van der Toll, 5 C. Rob. 283). But after the lapse of a. century I am of 
opinion that it has become a sufficiently settled doctrine and practice 
of the law of nations that fishing vessels plying their industry near or 
about the coast (not necessarily in territorial waters) in and by which 
the hardy people who man them gain their livelihood, are not properly 
subjects of capture in war so long as they confine themselves to the 
peaceful work which the industry properly involves. * * * 

It is obvious that in the process of naval warfare in the present day 
such vessels may without difficulty and with great secrecy be used in 
various ways to help the enemy. If they are their immunity would dis- 
appear; and it would be open to the naval authorities under the Crown 
to exclude from such immunity all similar vessels if there was reason 
for believing that some of them were used for aiding the enemy. And 



28 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

this seems to be the sense in which the second paragraph of Article 3 
of The Hague Convention should be regarded. 

As to the Berlin, I am of opinion that she is not within the category 
of coast fishing vessels entitled to freedom from capture. On the con- 
trary, I hold that by reason of her size, equipment, and voyage she was 
a deep-sea fishing vessel engaged in a commercial enterprise which formed 
part of the trade of the enemy country, and as such could, and was 
properly captured as prize of war. 

As regards the cargo of enemy prizes captured at sea, two rules are 
now definitely formulated in the Declaration of London (Articles 59 
and 60) : that, in the absence of proof of neutral ownership, all goods on 
enemy vessels are presumed to be enemy goods, and that enemy goods on 
board an enemy vessel retain their enemy character till they reach their 
destination, notwithstanding any transfer effected after the outbreak of 
hostilities while the goods are being forwarded. In the case of all goods 
shipped before the outbreak of war, the ordinary provisions of the 
mercantile law may be applied to determine whether the property during 
the voyage is in the sellers or the buyers. (See the Packet de Bilboa, 
2 C. Rob. 133.) And similarly transfers of property in transitu made 
bona fide before the outbreak of war will be recognized by an English 
prize court. The new English prize court rules which were brought into 
operation at the commencement of the war provide a simple and ex- 
peditious procedure of release of property which is not liable to con- 
demnation, and under this procedure a large amount of the cargo on the 
captured German vessels has been released to British and neutral 
claimants upon their production of the bills of lading in respect of the 
goods or other sufficient evidence of ownership according to the mer- 
cantile law. Several broad principles have been applied to the question 
of ownership at the moment' of capture. Goods shipped f. o. b. are 
deemed the property of the buyer from the time of the shipment, and, 
therefore, if consigned to the enemy country in an enemy or British 
vessel, are seizable as enemy property. On the other hand, goods 
shipped c. i. f. may remain the property of the shipper when he has 
reserved the power of disposition by taking the bill of lading, or by some 
special provisions in the contract. But ordinarily, they become the 
property of the consignee on shipment and the tender of the shipping 
documents to him. And it depends on the enemy or neutral character of 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 29 

the owner at the moment of capture whether the goods are prize. The 
President of the Prize Court held in an important test case, The Mira- 
michi, that goods shipped from America c. i. f. to German buyers in 
Germany were not to be condemned as enemy property where the 
contract provides for payment against documents and the buyers had 
rejected the documents on tender. The shipper retained the bill of 
lading and the jus disponendi and was therefore to be treated as the 
American owner. When, moreover, goods have been consigned from a 
neutral or friendly country to a port in the enemy country to the order 
of the shipper, and there is nothing further to show in whom the prop- 
erty would have lain on delivery, the representative of the Crown, the 
Procurator-General, has usually been willing to resign the cargo to a 
claimant who could produce a bill of lading. But when no claimant 
has appeared or when the claimant has failed to prove a title, cargo on 
an enemy vessel consigned to the enemy country has been condemned 
as enemy property. 

In determining the enemy or neutral character of the owner of cargo, 
the English court has followed the traditional practice of making com- 
mercial domicile the criterion. The Declaration of London, it is well 
known, leaves the question open between the English rule of following 
domicile or the Continental rule of following nationality. But the 
English rule, it is believed, is being adopted in the present war by the 
allies. Cargo has therefore enemy character if its owner is established 
in the enemy territory, though he be the subject of a neutral or an allied 
country, or even a British subject. The principle is clear for the in- 
dividual trader; but, in the case of a firm which has its principal seat in a 
friendly country and possesses a branch establishment in the enemy 
territory, the question is more difficult. The matter has not yet come 
before the prize court for judicial determination, but it is submitted that 
if the branch has the powers of an independent house, which can deal 
with the goods on its own authority and has received the documents 
respecting the goods, it must be treated as the owner; while, if it is 
merely a receiving agent for the goods, which are at the disposition of the 
principal house, and, if that principal house can produce the shipping 
documents, the property is treated as in its ownership, and has, therefore, 
neutral character, in spite of its destination to the enemy country. 



30 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

While British-owned and neutral-owned cargo on board an enemy 
vessel is protected by the Declaration of Paris, British and neutral 
property in the vessel itself, and encumbrances upon the vessel owned by 
friendly and neutral persons, in accordance with the rules of the old 
English prize law, have been disregarded. The capture operates in law 
upon the gross property in the ship, and likewise upon the gross property 
in the cargo, without taking account of any equitable claims. This 
principle, which was clearly enunciated at the beginning of the last 
century in several of the judgments of Lord Stowell and has been 
adopted by the American prize judges, was reaffirmed in one of the 
earliest prize decisions arising out of the present war, given by Sir Samuel 
Evans. (The Marie Glaeser.) The short effect of that judgment may 
be appreciated in the following summary. It covers the difficult claim 
of part ownership, hens and mortgages, but the learned judge dwelt at 
special length with the question of the recognition of neutral mortgages 
upon an enemy vessel which it was sought to distinguish from other 
charges. He cited decisions of the French and Japanese prize courts to 
show that the Declaration of Paris had not affected the old rule against 
disregarding liens and charges on captured property and rejected all the 
claims as of no effect in the prize court. 

This is the case of a German ship captured at sea after the outbreak of 
hostilities, which is, therefore, a fit subject for condemnation; and I 
decree the condemnation, and order the vessel to be sold. Various 
claimants have appeared. The persons who have claimed are share- 
holders, mortgagees, and the people who have disbursed expenses on 
the vessel. With regard to the shareholders in a vessel, it is clear that 
their property must go with the capture of the vessel in which they have 
put their money, whether they are German, or neutral, or English sub- 
jects. If a shareholder invests his money by taking shares in a vessel 
which is liable to capture, he takes that risk; but if a British shareholder 
likes to present his case to the Crown as a case for lenient treatment, 
that is another matter. Similarly with regard to claimants who have 
advanced money to the vessel or have rendered services. Sitting as a 
judge of the Prize Court I cannot recognise their claims; if they are to be 
allowed it must be from the bounty of the Crown. With regard to the 
claim of the mortgagees, it has been attempted to distinguish a mortgage 
from a maritime lien, which it is clear cannot prevail against capture. 
(The Tobago, E. P. C, I 456, and The Marianna, 6 C. Rob. 25.) I can 
see no reason why in Prize Law that distinction should be admitted, and 
there is authority both in English and American cases for disregarding 



INTEKNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAB 31 

the claim of neutral mortgagees of an enemy vessel against the captors. 
{The Aina, No. 1, Spinks 8; and The Hampton, 5 Wall. 374.) See abo 
The Frances, 8 Cranch 4 & 8, and the Carlos F. Roses, 177 U. S. 655. 
It has been argued that, on the analogy of the protection of neutral 
goods in enemy vessels which is afforded by the Declaration of Paris, 
neutral encumbrances on an enemy vessel should be protected. The 
Declaration of Paris, however, does not deal with ships but with goods, 
and the principles of capture are different in the two cases. It would 
make maritime capture a hazardous proceeding if the captors had to take 
account of such claims upon the captured property, and it would open 
the way to evasion of the belligerent rights. I reject the claims which 
have been presented, and decree that the vessel was properly seized as a 
prize, and that she is subject to condemnation. 

But, while the legal claims of neutral and friendly encumbrancers are 
not recognized by the court, the Crown is prepared in proper cases to 
take account of them by way of grace. And by the side of the common 
law of prize administered by the court there is likely to grow up an equity 
of prize administered by the Crown's representative, the Procurator- 
General, and his agents. The Crown, though always in English prize 
law the fountain of all prize, is now in a stronger position to give effect 
to equitable claims against captors, because, in the first place, pri- 
vateering has been abolished and all captures are now made by the public 
ships of the State; and, in the second place, captors are no longer entitled 
to the proceeds of their prizes. The former practice of distributing prize 
money has been abolished. No legislation was required upon the sub- 
ject, but an Order in Council of August 28th established a prize fund, into 
which all the net proceeds of prizes will be paid; and, at the end of the 
war, this fund will be divided by way of bounties among the whole navy. 

So far, we have been considering the treatment of German ships and 
cargoes, and though what has been said applies in part to Austrian 
vessels, there are certain important differences in the practices. War 
was not declared on Austria until August 12th, and Austrian vessels 
detained in English ports before that date for the carriage of contraband 
were treated somewhat indulgently as neutral vessels, and innocent 
German cargo on them was not seized. Moreover, as the British 
Government received satisfactory assurances from the Austrian Govern- 
ment that British vessels in Austrian ports would receive reciprocal 
treatment, the articles of the Order in Council of August 4th last, giving 



32 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

days of grace to enemy vessels taken in port at the outbreak of war, 
became fully operative in respect of Austrian ships. Cargo of a contra- 
band character was discharged from them, but on payment of its value 
to the neutral or friendly owners, and the vessels themselves were al- 
lowed to depart with a pass for a named Austrian or neutral port. 
When the vessel was unable or unwilling to depart within the period of 
grace, she was detained on the same terms as the German ships. The 
question as to the treatment of Austrian vessels captured at sea while 
in ignorance of hostilities, was settled by a notice issued from the 
foreign office at the end of October. It might have afforded a subtle 
argument as to whether Austria was entitled in this war as against 
the allies to the benefit of Article 3 of the Hague convention, which 
provides that vessels taken in those circumstances shall not be con- 
fiscated, but only detained, seeing that Germany and Russia, two of the 
belligerents, are not parties to that article in the convention. Probably 
the strict answer is that Austrian vessels were not legally entitled to the 
indulgence; but as the official notice subjoined shows, reciprocal con- 
cessions were made by the two Governments concerned. 

The Secretary of State for Foreign Affairs has received information 
to satisfy him that British merchant ships, which cleared from their 
last port of departure before the outbreak of hostilities with Austria- 
Hungary, but have been, or may be, met with at sea by Austro-Hun- 
garian ships of war after the outbreak of such hostilities, are to be de- 
tained during the war, or requisitioned in lieu of condemnation as prize, 
and he has accordingly addressed the undermentioned notification to 
the Lords Commissioners of the Admiralty. 

Foreign Office, 

October 81, 1914. 

Sir Edward Grey to the Lords Commissioners of the Admiralty 

Foreign Office, 

October SI, 1914. 
My Lords, 

I have the honour to state that information has reached me of a na- 
ture to satisfy me that British merchant ships, which cleared from their 
last port before the outbreak of hostilities with Austria-Hungary, but 
have been, or may be, met with at sea by Austro-Hungarian ships of 
war after the outbreak of such hostilities, are to be detained during the 
war, or requisitioned in lieu of condemnation as prize. 

Austro-Hungarian merchant vessels therefore, which cleared from 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 33 

their last port before the declaration of war, and are captured after 
the outbreak of hostilities with Austria-Hungary, and brought before 
British Prize Courts for adjudication, will be detained during the war, 
or requisitioned subject to indemnity. 

I have, etc., 

E. Grey. 

Finally, on this part of the subject, it is to be noted that the Prize 
Court held that enemy cargoes on British ships, whether seized at sea or 
in port, were liable to condemnation, because neither the Declaration 
of Paris nor any Hague Convention protected them, and therefore the 
old right of maritime capture of any enemy property afloat still applied. 

II. CAPTURE OF NEUTRAL VESSELS AND CARGOES 

The allied Powers from the outset of the war agreed to adopt the 
Declaration of London as the basis of the law to regulate their bellig- 
erent rights over neutral shipping in respect of contraband, blockade 
and unneutral service. The Declaration had not been ratified by 
England because the Naval Prize Bill of 1911, which was introduced 
into the English Parliament with a view to its ratification, was finally 
rejected by the House of Lords and the Government had taken no 
further steps; but, consequent upon the agreement of the allies, an Order 
in Council was issued on August 22d stating that the Declaration 
should be adopted and put in force during the war as if it had been 
ratified, subject to various additions and modifications. The order was 
in the following terms: 

Whereas during the present hostilities the Naval Forces of His Majesty 
will co-operate with the French and Russian Naval Forces, and 

Whereas it is desirable that the naval operations of the allied forces so 
far as they affect neutral ships and commerce should be conducted on 
similar principles, and 

Whereas the Governments of France and Russia have informed His 
Majesty's Government that during the present hostilities it is their 
intention to act in accordance with the provisions of the Convention 
known as the Declaration of London, signed on the 26th day of February, 
1909, so far as may be practicable. 

Now, therefore, His Majesty, by and with the advice of His Privy 
Council, is pleased to order, and it is hereby ordered, that during the 
present hostilities the Convention known as the Declaration of London 
shall, subject to the following additions and modifications, be adopted 



34 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

and put in force by His Majesty's Government as if the same had been 
ratified by His Majesty: — 
The additions and modifications are as follows: — 

(1) The lists of absolute and conditional contraband contained in the 
Proclamation dated August 4th, 1914, shall be substituted for the lists 
contained in Articles 22 and 24 of the said Declaration. 

(2) A neutral vessel which succeeded in carrying contraband to the 
«nemy with false papers maj r be detained for having carried such contra- 
band if she is encountered before she has completed her return voyage. 

(3) The destination referred to in Article 33 may be inferred from any 
sufficient evidence, and (in addition to the presumption laid down in 
Article 34) shall be presumed to exist if the goods are consigned to or 
for an agent of the Enemy State or to or for a merchant or other person 
under the control of the authorities of the Enemy State. 

(4) The existence of a blockade shall be presumed to be known — 
(a) to all ships which sailed from or touched at an enemy port a 

sufficient time after the notification of the blockade to the local au- 
thorities to have enabled the enemy Government to make known the 
existence of the blockade, 

(&) to all ships which sailed from or touched at a British or allied 
port after the publication of the declaration of blockade. 

(5) Notwithstanding the provisions of Article 35 of the said Declara- 
tion, conditional contraband, if shown to have the destination referred 
to in Article 33, is liable to capture to whatever port the vessel is bound 
and at whatever port the cargo is to be discharged. 

(6) The General Report of the Drafting Committee on the said 
Declaration presented to the Naval Conference, and adopted by the 
Conference at the eleventh plenary meeting on February 25th, 1909, 
shall be considered by all Prize Courts as an authoritative statement of 
the meaning and intention of the said Declaration, and such Courts shall 
construe and interpret the provisions of the said Declaration by the 
light of the commentary given therein. 

And the Lords Commissioners of His Majesty's Treasury, the Lords 
Commissioners of the Admiralty, and each of His Majesty's Principal 
Secretaries of State, the President of the Probate, Divorce and Ad- 
miralty Division of the High Court of Justice, all other Judges of His 
Majesty's Prize Courts, and all Governors, Officers and Authorities 
whom it may concern, are to give the necessary directions herein as to 
them may respectively appertain. 

It may be recalled that at the opening of the Crimean War England 
modified her prize practice in order that it should be uniform with the 
French and in the present struggle the exercise of the prerogative was 
called for to secure the necessary modification of the existing British 
prize law for uniform action with the Allies. 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 35 

The adoption of the report of M. Renault as the official commentary 
on the Declaration was expected, as in the discussion of the Naval Prize 
Bill it was pointed out that many provisions in the articles of the Declara- 
tion only received an exact meaning in the text of the commentary. 

The modification introduced by the Order in Council into the rules of 
blockade laid down in the Declaration widens the cases of presumptive 
knowledge of a blockade which will make a neutral vessel liable to 
capture for attempted breach of blockade. By Article 15 of the Declara- 
tion knowledge of the blockade is presumed if the vessel left a neutral 
port subsequently to the notification of the blockade to the Power to 
which the port belongs. By Article 4 of the Order in Council the pre- 
sumption will apply to a neutral vessel which left a British, French, 
Russian or Belgian port after the publication of the declaration of 
blockade, or which left a German or Austrian port in sufficient time after 
the notification of the blockade to the local authorities to have enabled 
the enemy government to make known the existence of the blockade to 
neutrals. 

The more important changes, however, affect the doctrine of con- 
traband. The class of absolute contraband is increased by the inclusion 
of aeroplanes, airships, balloons, etc., which appear in the list of 
absolute contraband of the proclamation of August 4th, while they 
are in the list of conditional contraband in Article 24 of the Declara- 
tion of London. The effect of the modification is that aeroplanes, etc., 
can be condemned as prize when found on any vessel destined to the 
enemy country, or where there is any indication that they are to be 
forwarded from a neutral port to the enemy country. It is not neces- 
sary to show that they are destined for the use of the armed forces or 
of a government department of the enemy State. 

The penalty for carrying contraband is extended by Article 2 of the 
Order in Council to the case of a vessel which is captured on her return 
voyage after having carried contraband to the enemy with false papers. 
This is in accordance with the rule laid down in an English prize case, 
The Nancy (3 C. Rob. 122), but modifies the rule laid down in Article 38 
of the Declaration. It is presumed that the neutral vessel will only be 
liable to capture on her return voyage if she sailed under false papers, so 
that the change is very restricted in its effect. 



36 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

The additions and modifications numbered (3) and (5) in the Order 
mark a striking extension of the rules upon the capture of conditional 
contraband which had been formulated by the London Conference. 
According to the Declaration, conditional contraband could only be 
captured if shown to be destined for the use of the armed forces or of 
the government or of a government department of the enemy State, 
and that destination was presumed to exist if the goods were con- 
signed "to enemy authorities, or to a contractor established in the 
enemy country who, as a matter of common knowledge, supplies articles 
of this kind to the enemy, or if they are consigned to a fortified place 
belonging to the enemy, or other place serving as a base for the armed 
forces of the enemy." Grave doubts had been expressed as to the true 
interpretation of "contractor" (the French text having commerqant) 
as also of "a place serving as a base." And the additions in the Declara- 
tion, while not throwing light on the second ambiguity, sought to clear 
up the first by the extension of the presumption of hostile destination 
when the goods are consigned to or for an agent of the enemy State or 
to or for a merchant or other person under the control of the authorities 
of the enemy State. The last-named class, however, itself seems to 
require interpretation, and it would have been for the prize court to 
determine it more exactly; but before the question was raised judicially, 
this part of the Order has been repealed. 

Still more important than the extension of the presumption of hostile 
destination for conditional contraband is the extension to that class of 
goods of the doctrine of continuous transport. The Declaration applies 
that rule to absolute contraband, following the practice which started in 
the American Civil War (see the cases of the Peterhoff and the Springbok, 
5 Wall. 28 and 1), and was subsequently illustrated in the case of the 
Doelwyk, an Austrian steamer seized by the Italians in 1897 in their 
little war with Abyssinia. But the Declaration expressly rejected the 
doctrine for conditional contraband except when the enemy country 
has no seaboard. (Article 36.) Now Germany and Austria are not in 
that condition, but there were peculiar conditions in the present war, 
due to the fact that neutral ports, such as Rotterdam and Copenhagen, 
became the chief means of access to a large part of Germany, owing 
to the mining of the North Sea and the naval operations. Germany, 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 37 

in fact, was assimilated to the position of a country having no sea coast, 
because there were no ports on her coast line to which neutral shipping 
could put in. And the allies naturally could not be expected to allow 
his armies to be supplied through neighboring neutral ports with food 
stuffs or fuel or military clothing or railway material any more than 
with arms and ammunition. The partial adoption and partial rejec- 
tion of the doctrine of continuous transport for contraband trade at 
the London Conference was a diplomatic compromise, and such com- 
promises which are not based on any principle do not stand very well the 
test of stern belligerent practice. In an article which appeared in the 
last April number of this Journal on the Declaration, the Editor of 
this review criticized the solution reached at London, and the American 
plenipotentiary to the Conference likewise criticized it as an unconvinc- 
ing compromise in a report on the work of the Conference, which was 
published in the Journal in 1909. Provided the evidence of hostile 
destination is made out, neutrals cannot fairly complain of the deten- 
tion of their cargoes of any contraband character consigned to the 
enemy country through a neutral port. It is the ultimate destination 
which must be the criterion of innocent or noxious character. It is to 
be noted that the Declaration of London, not having been ratified be- 
fore the war by the belligerent Powers, was not a binding treaty be- 
tween them and neutrals, and it was therefore clearly open to the Allies 
to modify its rules, provided that they did not violate any recognized 
rules of international law by their changes. And at the London Con- 
ference all the allied Powers, as well as Italy and the United States, 
had been in favor of applying the doctrine of continuous transport to 
conditional as well as to absolute contraband. 

Another important but short-lived modification of the provisions of 
the Declaration as to conditional contraband was the addition to the 
list of conditional contraband articles made by an Order in Council 
issued on September 20th. It provided that the following articles were 
to be treated as conditional contraband: 

Copper, unwrought, 

Lead, pig, sheet or pipe, 

Glycerine, 

Ferrochrome, 



38 THE AMERICAN JOURNAL OP INTERNATIONAL LAW 

Hematite iron ore, 

Magnetite iron ore, 

Rubber, 

Hides and skins, raw or rough tanned (but not including dressed 
leather). 

As regards the inclusion of the iron ores, Sweden complained that 
these articles were on the "free list" established by Article 28 of the 
Declaration of London, and that her merchants would be very seriously 
injured if the prohibition in the trade of these ores were maintained. 
There can be, however, little doubt that these ores come within the prin- 
ciple of contraband, because they are extensively used in the manu- 
facture of armament; and, as the Declaration as a whole is not a binding 
part of international law, it is still open to a belligerent to declare as 
contraband whatever is in fact capable of use for military purposes. 
The English Government, pending a more definite settlement of the 
list of contraband for the time permitted the trade in iron ores from 
Sweden. But on October 29th two fresh Orders in Council were issued 
repealing the two earlier Orders about the Declaration of London, and 
establishing new lists of contraband, both absolute and conditional, 
and making a number of needed modifications of the rules of the Declar- 
ation. The Orders, which represent the considered British attitude to- 
ward contraband during the war, and which were followed by the Allies 
in their dealings with neutrals, read as follows: 

Whereas on the fourth day of August, 1914, we did issue our Royal 
Proclamation specifying the articles which it was our intention to treat 
as contraband of war during the war between us and the German Em- 
peror; and 

Whereas on the twelfth day of August, 1914, we did by our Royal 
Proclamation of that date extend our Proclamation afore-mentioned to 
the war between us and the Emperor of Austria, King of Hungary; and 

Whereas on the twenty-first day of September, 1914, we did by our 
Royal Proclamation of that date make certain additions to the list of 
articles to be treated as contraband of war; and 

Whereas it is expedient to consolidate the said lists and to make cer- 
tain additions thereto: 

Now, Therefore, we do hereby declare, by and with the advice of 
our Privy Council, that the lists of contraband contained in the schedules 
to our Royal Proclamations of the fourth day of August and the twenty- 
first day of September aforementioned are hereby withdrawn, and that 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 39 

in lieu thereof during the continuance of the war or until we do give 
further public notice the articles enumerated in Schedule I hereto will 
be treated as absolute contraband, and the articles enumerated in 
Schedule II hereto will be treated as conditional contraband. 

Schedule I 

1. Arms of all kinds, including arms for sporting purposes, and their 
distinctive component parts. 

2. Projectiles, charges, and cartridges of all kinds, and their distinc- 
tive component parts. 

3. Powder and explosives specially prepared for use in war. 

4. Sulphuric acid. 

5. Gun mountings, limber boxes, limbers, military wagons, field 
forges and their distinctive component parts. 

6. Range-finders and their distinctive component parts. 

7. Clothing and equipment of a distinctively military character. 

8. Saddle, draught, and pack animals suitable for use in war. 

9. All kinds of harness of a distinctively military character. 

10. Articles of camp equipment and their distinctive component parts. 

11. Armour plates. 

12. Haematite iron ore and haematite pig iron. 

13. Iron pyrites. 

14. Nickel ore and nickel. 

15. Perrochrome and chrome ore. 

16. Copper, unwrought. 

17. Lead, pig, sheet, or pipe. 

18. Aluminium. 

19. Ferro-silica. 

20. Barbed wire and implements for fixing and cutting the same. 

21. Warships, including boats and their distinctive component parts 
of such a nature that they can only be used on a vessel of war. 

22. Aeroplanes, airships, balloons, and aircraft of all kinds, and their 
component parts, together with accessories and articles recognizable 
as intended for use in connection with balloons and aircraft. 

23. Motor vehicles of all kinds and their component parts. 

24. Motor tires; rubber. 

25. Mineral oils and motor spirit, except lubricating oils. 

26. Implements and apparatus designed exclusively for the manufac- 
ture of munitions of war, for the manufacture or repair of arms, or war 
material for use on land and sea. 

Schedule II 

1. Foodstuffs. 

2. Forage and feeding stuffs for animals. 

3. Clothing, fabrics for clothing, and boots and shoes suitable for use 
in war. 



40 THE AMERICAN JOURNAL OP INTERNATIONAL LAW 

4. Gold and silver in coin or bullion; paper money. 

5. Vehicles of all kinds, other than motor vehicles, available for use 
in war, and their component parts. 

6. Vessels, craft, and boats of all kinds; floating docks, parts of docks, 
and their component parts. 

7. Railway materials, both fixed and rolling stock, and materials for 
telegraphs, wireless telegraphs, and telephones. 

8. Fuel, other than mineral oils. Lubricants. 

9. Powder and explosives not specially prepared for use in war. 

10. Sulphur. 

11. Glycerine. 

12. Horseshoes and shoeing materials. 

13. Harness and saddlery. 

14. Hides of all kinds, dry or wet; pigskins, raw or dressed; leather, 
undressed or dressed, suitable for saddlery, harness, or military boots. 

15. Field glasses, telescopes, chronometers, and all kinds of nautical 
instruments. 

Whereas by an Order in Council dated the 20th day of August, 1914, 
His Majesty was pleased to declare that during the present hostilities 
the Convention known as the Declaration of London should, subject 
to certain additions and modifications therein specified, be adopted and 
put in force by His Majesty's Government; and 

Whereas the said additions and modifications were rendered neces- 
sary by the special conditions of the present war; and 

Whereas it is desirable and possible now to re-enact the said Order 
in Council with amendments in order to minimize, so far as possible, 
the interference with innocent neutral trade occasioned by the war: 

Now, Therefore, His Majesty, by and with the advice of His Privy 
Council, is pleased to order, and it is hereby ordered, as follows: — 

1. During the present hostilities the provisions of the Convention 
known as the Declaration of London shall, subject to the exclusion of 
the lists of contraband and non-contraband, and to the modifications 
hereinafter set out, be adopted and put in force by His Majesty's Gov- 
ernment. 

The modifications are as follows: — 

(i.) A neutral vessel, with papers indicating a neutral destination, 
which, notwithstanding the destination shown on the papers, proceeds 
to an enemy port, shall be liable to capture and condemnation if she is 
encountered before the end of her next voyage. 

(ii.) The destination referred to in Article 33 of the said Declaration 
shall (in addition to the presumptions laid down in Article 34) be pre- 
sumed to exist if the goods are consigned to or for an agent of the enemy 
State. 

(iii.) Notwithstanding the provisions of Article 35 of the said Declara- 
tion, conditional contraband shall be liable to capture on board a vessel 



INTERNATIONAL LAW AS APPLIED, BY ENGLAND IN THE WAR 41 

bound for a neutral port if the goods are consigned "to order," or if 
the ship's papers do not show who is the consignee of the goods or if 
they show a consignee of the goods in territory belonging to or occupied 
by the enemy. 

(iv.) In the cases covered by the preceding paragraph (iii.) it shall 
lie upon the owners of the goods to prove that their destination was in- 
nocent. 

2. Where it is shown to the satisfaction of one of His Majesty's 
Principal Secretaries of State that the enemy Government is drawing 
supplies for its armed forces from or through a neutral country, he may 
direct that in respect of ships bound for a port in that country, Article 35 
of the said Declaration shall not apply. Such direction shall be notified 
in the "London Gazette," and shall operate until the same is withdrawn. 
So long as such direction is in force, a vessel which is carrying conditional 
contraband to a port in that country shall not be immune from capture. 

3. The Order in Council of the 20th August, 1914, directing the adop- 
tion and enforcement during the present hostilities of the Convention 
known as the Declaration of London, subject to the additions and 
modifications therein specified, is hereby repealed. 

The lists of contraband at first sight offer the appearance of a large 
extension of the doctrine of prohibited trading by neutrals with the 
enemy; but, on examination, it is submitted that the changes are in 
accord with the general principles which governed the scheme of the 
Declaration. Articles exclusively or mainly used for warlike purposes 
during war may be declared absolute contraband, while articles suscep- 
tible of use for war, though also required for civil purposes, may be 
declared conditional contraband. The list of absolute contraband in 
the Declaration of London (which was drawn up five years ago) failed 
to meet the actual need of belligerents today, because it did not foresee 
the vital part which motor traffic would play in military operations, and 
it failed also to prohibit the trade in articles, which though not im- 
mediately munitions of war, are essentially required for the manufac- 
ture of munitions. The new list remedies this defect, while the addi- 
tion to the list of conditional contraband of hides, pigskins and leather 
suitable for saddlery, harness or military boots is obviously reasonable. 
The fresh presumptions of hostile destination set up by Modification iii, 
where goods are consigned to order or the ship's papers do not show any 
consignee, are a new, but a justifiable application of the doctrine of 
continuous voyage, which the modern circumstances of commerce in 



42 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

war have called for. Merchants engaged in contraband trade today are 
skillful enough to hide the enemy destination, and the belligerent can 
only protect himself either by a more rigorous control on the sea of 
neutral trade which has not a clearly innocent destination or by induc- 
ing neutral states to assist in checking the noxious trade of their subjects. 
The latter way was the object aimed at in Article 2 of the order, and, in 
fact, the publication of the order was followed by ordinances passed 
in Denmark, Holland and Sweden to prohibit the exportation from 
those countries of goods which were contraband. In this way, their 
sea-borne commerce was protected against excessive interference while 
the belligerent's need was satisfied. 

It is notable that articles, whether of absolute or conditional contra- 
band, which were seized in neutral vessels bound for the enemy country 
at the outbreak of hostilities, have not been confiscated, but, as 
is provided for in Article 43 of the Declaration, are condemned subject 
to the payment of compensation and that whether the ship was taken 
at sea or in the belligerent's port. If the owner were a person living in 
the enemy country, the payment of compensation is suspended till the 
conclusion of war, because of the rule against making payments to an 
enemy subject. And the cargo owner takes the proceeds of the contra- 
band cargo subject to the payment of the ship's freight, the English 
prize rule being that the ship is entitled to her freight, although the 
goods have not been brought to their destination, if she was prevented 
from carrying them there solely by the disability of the goods. 

Apart from contraband, the chief topic among those covered by the 
Declaration of London which has become of practical concern in the 
early stages of the war is that of transfer to a neutral flag after the 
outbreak of hostilities. The rules of the Declaration on this point are 
more rigid and more severe against attempted transfers than the old 
English prize rule. By Article 56, the transfer of an enemy vessel to a 
neutral flag in war time is void, unless it is proved that it was not made 
in order to evade the consequences to which an enemy vessel is exposed, 
i. e., capture by the public ships of the belligerent; whereas, by the former 
English rule, these transfers were valid if made bona fide and by out and 
out sale in a neutral or enemy port other than a blockaded port. It was 
in virtue of the new rule that the English Government originally pro- 



INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE WAR 43 

tested against the transfer 'to the American flag of the German liners 
which, at the outbreak of war, were bottled up in ports of the United 
States; and, if finally the transfer is permitted, it will be a deliberate 
waiving of belligerent rights granted out of regard to the innocent 
purposes for which the Americans propose to apply the acquired vessels. 
Finally, attention may be directed to an instructive prize decision 
which partly turned on the question of transfer immediately prior to 
war from a belligerent to a neutral flag (The Tommi and The Rothersand). 
The case concerned two vessels seized in the port of London on August 
5th when they were flying the German flag; but it was urged that they 
should be released because of an alleged transfer made four days pre- 
viously from their former German owners to an English company. 
This transfer had been made by telegram while the vessels were on their 
voyage from Germany to England. In refusing to recognize the trans- 
fer the Prize Court judge said: 

There are three heads under which the case can be considered. First, 
whatever may be the result properly to be attributed to this alleged 
transfer, it is said the vessel was sailing under the German flag on August 
5, and that therefore the German flag proves her nationality, and she 
must therefore be taken to be German and subject to seizure by this 
country on August 5. It is perfectly clear that if a ship does sail under 
a particular flag, unless there are very special reasons, she enjoys the 
protection of the country whose flag she flies, and she is regarded as 
belonging to the State whose flag she carries. Mr. Laing said there was 
a distinction to draw in considering this part of the case between a cap- 
ture at sea and seizure in port. It does not matter in the slightest degree 
whether the flag was actually flying and hoisted at the mast. The ques- 
tion is what flag she was entitled to fly, and in my view there is no dis- 
tinction upon this part of the case between a ship captured at sea and a 
ship seized in port. * * * Therefore if there were no other point in 
the case, I think the fact that the vessel was flying the German flag is 
enough to entitle her to be regarded as the subject of capture. The sec- 
ond question is whether this transfer was valid, and I have come to 
the conclusion, clearly, for the purpose of the Prize Court, that this 
transfer was not a valid transfer at all. * * * It was hardly more 
than this: "We understand you over there, and you understand us 
over here; our companies are mutually connected. We in Germany own 
nine-tenths of the shares in the British company; if war breaks out 
whoever the belligerent is, let this ship be called a British ship." I think 
that is the real substance of the transaction. Apart from that, much 
more is needed to transfer a vessel in transit when war has been declared 
or even when war is imminent than was done in this particular case. 



44 THE AMERICAN JOURNAL OP INTERNATIONAL LAW 

If I have stated the correct principles to apply I need not go into the 
details of the case to point out that nothing was arranged as to when 
the purchase money was to be paid, as to when the completion was to 
take place, or that it is not shown that any satisfactory arrangement was 
made by the British company that they and not the person who is said 
to have bought the vessels should become the purchasers. Apart from 
the Declaration of London (Articles 55 and 56), and whatever alteration 
that may make in the law, it cannot be said that the artificial periods of 
time for the transfer of vessels agreed upon by the various nations can 
be found in any decision of any particular Prize Court belonging to any 
country. They are convenient, but I refer to Articles 55 and 56 to show 

(1) that the basis of the whole thing must be that the transfer was not 
made to avoid the consequences to which the enemy vessel supposed 
to be transferred might be exposed by the action of any belligerent, and 

(2) that in any event, even after a lapse of time like 30 days, the transac- 
tion must have been completed, not merely by letters or telegrams pass- 
ing, but by the execution of the formal documents necessary to complete 
the title. In this case there is an absence of any such documents. I 
have come to the conclusion, therefore, without any doubt that this 
alleged transfer was not valid. 

Norman Bentwich.