THE DECLARATION OF LONDON, 1908.

Dominion, Volume 4, Issue 1229, 11 September 1911, Page 6

THE DECLARATION OF LONDON, 1908.

(Geo. n. Scales.) At tho Peace Conference held at Tho Hague in October, 1007, an effort was made to bring about' somo better mutual understanding with referenco to tho relation between belligerents and neutrals during maritime war, and moro particularly in regard to the adjustment of disputes arising out of the capture and condemnation of neutral vessels, and resulted in a convention being drawn up to the cil'ect that it would be to the interests of all nations that instead of tlie final decision as to the rights of neutrals resting with the Court of the belligerent country, somo appeal from such Court, should, bo provided, and that it would bo desirable to establish an International Prizo Court for the hearing of such appeals. Whilst the convention drawn up at tho Hague Conference provided for the establishment of an International Prizo Court, it was contended that there i\as much vagueness as to the conditions under which it was provided this Court should give its decision, and with tho view of arriving at somo definite rules and regulations, the British Government took tho initiative and issued invitations to somo of the principal naval Powers of the world to attend a conference. Tho invitations, which wero all accepted, resulted in representatives of AustriaHungary, I'rancc, Germany, Italy, Japan, Netherlands, itussia, Spain, United States, and Great Britain meeting in London on December 4, 19US, and drawing up a memorandum at the conference entitled tho Declaration of London, settiug out what, in the opinion of such representatives, should bo tho rules and regulations to bo observed in naval warfare, and on which the decisions of the International Prize Court should be based. Sinco tho period of the Crimean War the conditions governing the relations between belligerents and neutrals have been largely based upon the result of a congress held at Paris in 1856, and which was known as tho Declaration of Paris: the general effect of this was to provide that tho property of neutrals, even under an enemy's flag, was exempt from capture unless contraband, but no definition of what was contraband was given. The other provisions of this Declaration had reference to the abolition of privateering, and provided for the efficiency of a blockade where the blockading belligerent claimed the right to prevent access to the blockaded coast. The absence of any definilion or agreement as to what was c-r what was not contraband, or any reference to the course to bo pursued by belligerents in dealing with captured vessels containing, cr believed to contain, contraband, resulted in a kind of unwritten law by which the belligerents claimed to exerciso their own jurisdiction. The Declaration of London consists of ten chapters, the first nine of which contain rules aud regulations concerning the nine subject matters dealt with, and are divided into sixty-four articles; the remaining chapter provides for giving effect to tho whole. i Blockade,

The first subject dealt with is "block-. ade," under Chapter I. The regulations dealing with this subject provide that a blockade, to bo binding, must bo maintained by a force sufficient to prevent access to the coast-lino of the enemy, and that it must bo applied impartially to ships of all nations, and that under exceptional circumstances vessels may be permitted to both enter and lcavo a blockaded port.

Any neutral vessel attempting access to or egress from a blockaded coast is liable to capture by any of tho vessels employed in the blockading operations, but the liability is contingent always on her knowledge of the existence of the blockade, but whatever the ulterior destination of tho ship or cargo may be, sho cannot He captured for breach of blcckado if then bound to a non-blockaded port. Both vessel and cargo captured for breach of blockade may bo condemned, but if tho shipper can prove that at the timo of shipment he could not havo known of the intention to break blockade, the goods may bo released. Tho main difference in the conditions as expressed by the Declaration and those held by tho British Government lies in the fact that tho latter havo always held that tho mere act of sailing in the direction of a blockaded port rendered a vessel liable to capture. Classification of Contraband. Chapter II deals with contraband and the conduct of neutral vessels outside ol the 'question of blockado during wartime. It. defines certain classes of goods' that are never liable to capture, some that may bo captured under certain circumstances, and others that may always bo captured. The first class is called tho "Frco List." The second, "Conditional Contraband." Tho third, "Absolute Contraband." Tho free list consists of mercantile, domestic, and agricultural articles, amongst which are wool, ootton, silk, flax, hemp, copra, gums, etc., etc. Conditional contraband includes foodstuffs (for both man and boast), fuel, lubricants, and many other articles which whilst necessary during times of peace may also bo of use in the field of war. Provision is made by which p other articles also susceptible of use in war as well as for purposes of peace may be added to the list. Absoluto contraband includes all articles— cither in whole or part—that aro destined or specially prepared for the purnoses of war, as well as such articles as firearms for sporting purposes, clothing, harness, etc., of a distinctively military, character, also saddle, pack, and draught animals. Other articles exclusively used for war may be added to this list under prescribed regulations. , Absolute Contraband. Absolute contraband, shown to bo destined to territory belonging to, or occupied by, the enemy, or to the armed forces of tho enemy, is liable to capture, whether the carriage is direct or entails transhipment or a pul)=eoiip»t 'nm> h--. sit, and proof of such destination is complete when goods are documented for discharge in an enemy port or for delivery to the armed forces, or when a vessel is to call at an enemy port only or to touch at an enemy port or meet tho armed forces' before reaching a neutral port for which the goods are documented. In all cases the ship's papers ore conclusive' proof as to tho voyage, unless sho is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.

Conditional Contraband. Conditional contraband is liable to seizure whilst on board a ship that is bound direct for enemy territory, unless any presumption that the goods are for tho use of the Government or for tho armed forces, can be rebutted, but they are not liable to seizure, no matter where or for, whom destined,- provided that before reaching their final destination they arc to be discharged at some neutral port. If the goods are consigned to certain specified persons or places the presumption will bo deemed to exist, and proof will have to be forthcoming that tho person or place specified in the consignment does not como within tho meaning of the words of the Declaration. In event of goods, otherwise liable to capture, being destined for an enemy whose country has no seaboard, tho liability of capture is not affected by the destination of the ship. Tho mere fact of having to touch at an intermediate port does not relieve a vessel from tho liability of capture through any part of her voyage if sho is carrying goods that arc liable to capture. All contraband goods are liablo to. bo condemned, but before the vessel carrying them may be condemned, the contraband cargo, reckoned either by value, weight, volume, or freight, must form more than half the cargo, and although she may lint eventually be condemned, she may be held liable, to'pay all the costs and expenses incurred by tho captor, but whero, on account of the proportion of the cargo the ship herself is not liable to be condemned, tho captor is at liberty to destroy tho contraband. Where a vessel has'left a neutral port before hostilities began, neither sho nor her cargo can be condemned whilst ignorance of hostilities can bo proved. British Government's Views on Contraband. Practically, with one exception, the Brijtiah, UaicArjußoot!* views on tho subject

of contraband have been accepted as International Law under the Declaration of London, the one exception being the circumstances under which conditional contraband may bo seized or condemned, and the essence of this exception lies in the fact that whilst tho British Government hare desired to'maintain the doctrine of continuous voyage, in which tho deciding factor is tho destination of tho cargo, not the ship, tho Declaration of London makes the deciding factor the destination of tho ship not the cargo, and it may bo interesting hero to make a comparison between tho views expressed by tho British Government to the other Powers attending (lie conference and what the British Empire irill be a. party to if the Declaration of London is ratified in its present form. The Government's expressed view9woro: 1. Absolute contraband was seizablo if destined to any place in tho territory of the enemy. 2. Conditional ' contraband would become absolute if destined for tho naval or military forces. 3., Conditional contraband would not necessarily become absolute if destined for any place in the territory of tho enemy, i i. If tho goods wero for a hostile destination the fact that the ship was not going to a hostile port would not absolve the goods from tho liability of seizure. It. will be observed that tho Government approved the seizure of absolute contraband if destined to enemy territory, and that conditional contraband destined to tho armed forces should be treated as absolute, though there was no necessary presumption that conditional contraband was destined for the armed forces merely because it was destined for enemy territory, and finally, that the destination of tlio ship did not affect tho liability of seizure if tho goods were for a hostile destination.

Now, turning to the Declaration, wo find that conditional contraband is liable to capture if destined for the uso of the armed forces or by a Government Department. This gives effect to number two of tho Government's views, though the conditions are, perhaps, a little more stringent hi view, of tho inclusion of the words "by a Government Department.". Number three of tho Government's views purports to define a condition the existence of which would not in itself warrant tho presumption that tho conditions of Clause No. 2 should apply, the words used by the Government are "would not necessarily . . . if destined for any place" but the Declaration whilst still leaving it possible for tho Government's views as expressed to ba applicable, defines with precision certain conditions the existence of which shall warrant the presumption that tho goods would como under the conditions of Clause No. 2 of the British Government's views, by providing that tho destination shall be presumed to be tho armed forces if tho goods aro consigned to:— Enemy authorities. A contractor established in tho country who is commonly known to supply such articles to the enemy. A iortihed place belonging to the enemy. Places serving as a base for tho armed forces. Whilst the first and third of theso provisions are clear and concise, the same cannot bo said of the second and fourth, as there is no attempt to deliuo what constitutes a contractor, or a place serving as a base, and it must be homo in mind that, primarily, the responsibility of deciding rests with tho commander of tho capturing warship.

Under No. i of the Government's views the declination of the goods not that of tho ship was laid down as the important factor in deciding the right to seize, whereas in the Declaration tho liability of seizure above referred to only exists when the vessel is bound for enemy territory or for tho hoslilo forces and if she is not going to discharge tho contraband goods in au intervening neutral port.

On the one hand the Government say that no matter where the ship is going if the goods arc destined for the enemy they aro liable to seizure, whilst on the other, Uio Declaration says no matter where tho goods are going if tho ship is not going to the enemy country the goods aro not liable to seizure: tho exact words, of the Declaration are:— "Conditional contraband is not liable to capture except when found on board a vessel bound to territory belonging to or occupied by the enemy, or for tho armed forces of Hie enemy, and when it is not to bo discharged in an intervening neutral port." Unneutral Service. Neutral vessels that are employed or performing services for either of the belligerents render themselves liable under some circumstances to bo treated as though they were carrying contraband, or even as vessels belonging to the enemy, and any member of tho armed forces of tho enemy found on'board may be mado a prisoner. These conditions, which comprise Chapter 111, coincide with tho views of tho British Government. Destruction <of Neutral Prizes. Tho subject matter of Chapter IV is the destruction of neutral prizes. A neutral vessel that has been captured must bs taken into port, unless she is liable to condemnation, in which case if taking her into port would involve danger to the captor or to his operations she may bo destroyed after all persons, papers, and documents have been mado safe.

In the event of her destruction, however, the captor must establish the fact that ho acted only in the face of an exceptional necessity of the nature contemplated; if he fails in this he must compensate all the parties interested. If, after the act of destruction has been held'to have been justified, the capture is held to be invalid, the captor must also pay compensation; and, further, if neutral gcods not liable to condemnation have been destroyed, the owner of them is entitled to compensation. The British Government have always hold the view that under no circumstances was the destruction of a neutral ship warranted, but in view cf what had transpired at The Haguo Conference, the delegates to the London Conference wero intimated that, with the view of arriving at a compromise, the justification of the right to sink should be an imperative military necessity, but not warranted by the inability to spare a prize crew or the remoteness of a national port. Transfer to a Neutral Flag. Under Chapter V the transfer of vessels from belligerents to neutral effected more than thirty days before hostilities began will,, under certain conditions, ho recognised as valid, but if transferred within' thirty days the responsibility will rest with the interested parties to provo that the object of the transfer was not tho evasion of consequences to which n belligerent vessel might necessarily bo exposed. These conditions are practically in sympathy with those held by tho British Government.

The Sixth Chapter provides thai- a vessel's nationality is determined (subject to Chapter V) by the flag she (lies, .and the goods follow tho vessel unless it can be proved that tho nationality of tlia owner is neutral. These, provisions coincido with the British Government's views so far as the vessel is concerned, but tho Government would have preferred that the test of domicile rather than the nationality of the owner should have been applied to tho goods. Convoy. Chapter VII provides that tho commander of a man-of-war acting as convoy is alone responsible to any belligerent warship as to tho character of tho vessels or their cargoes, and the right to search is not accorded a belligerent. These views are opposed to the British Government's ideas. Resistance to Search and.Compensation. Tho last two chapters provide respectively penalties for any forcible resistance to the rights of the belligerent wars-hip and for the right to compensation where tho seizure, of a vessel 'or cargo is net upheld by tho Prizo Court, always provided that there are no good reasons for the capture. To say that tho Declaration of London has created interest in the United Kingdom would bo a very feeble way of expressing the aetivo hostile antagonism displayed towards its contents in that country. Many of the largest shipowning federations, most of tho principal chambers of commerce, and many other mercantile associations have been lor nioro than a year past vigorously protesting to' tho Government against its ratification. It is claimed by those objecting to the tonus of the Declaration that the rati-

ficalion of it would mean tho abrogation of at least many of the mcst important principles that England has consistently maintained as being essential to the proper conduct of maritime war in general, and which England in particular might havo to rely on when at war herself for tho maintenance of her own food supplies. Conversion of Merchantmen into Warships on the High Seas. It is contended that the omission of any reference in the Declaration to the right to convert merchantmen into warships on the high seas must he admitted to bo a recognition of the right to so convert, and that the acceptance uf such a principle would inflict: great loss on our own mercantile steamship owners, besides creating an additional difficulty and danger in the matter of supplying foodstuffs to the United Kingdom in time of war. While the conditions under which an "enemy warship" may enter, remain, and leave a neutral port nre_ curbed and restricted, no such disabilities are applicable to the "enemy merchantman" which is entitled to pursuo her ordinary procedure during times of war as in times of peace, so that provided such vessel is able to avoid exposing its intention of "conversion" whilst in a neutral port, it would be able, whilst practically a "warship," to enjoy all the privileges of a peaceful merchantman, and such privileges could no doubt be used to its very great advantage as a "lighting ship' when clear of the- neutral port. This will become very readily apparent when considered in connection with the right accorded to belligerent warships to destroy neutral vessels carrying foodstuffs to the enemy country. The neutral is debarred from any action in the nature of i'crciblo resistance, and under the circumstances above enumerated is called upon to show the warship's commander that although she is bound for {he enemy country her foodstuffs are not destined for tho Government, or for its armed forces, although, to be discharged at tome "place'' in such territory, and it therefore falls upon her to satisfy him that tho "place" of discharge is not a "base of supply" to tho "arnyd forces." Should the belligerent commander decline to accept tha proofs, the neutral may still be able to save his ship by satisfying his captor—if it is in his power so to dothat the conditional contraband aboard, cither by weight, volume, value, or freight does not equal one-half the cargo. Should he so succeed . the goods may bo destroyed and the vessel set free: should ho fail, both ship and cargo become a prize to be taken to one of, tho captor's porte, or then and there destroyed at his option. While there is absolutely no provision in the Declaration under which the captor must prove to the Court that ho was entitled to capture tho ship, he must, if he. destroys , her, show tho Court that taking her into one of his own ports would have entailed some risk to him for his operations. It must bo remembered that the difficulties just outlined apply to neutral vessels when bound "direct" to enemy territory carrying contraband, but do not apply when vessels, although carrying conditional contraband destined for the enemy country, are going lo discharge it in some intervening neutral port, as under those circumstances neither vessel nor cargo may bo seized or destroyed.

This will permit neutral vessels to carry conditional contraband that is destined for England—during a war in which she may bo engaged—to some neutral port say in the English Channel or North Sea without fear of. interruption, no matter whether for the armed forces or not, but from such neutral port the goods, as well as the ship carrying them, can enjoy no assured immunity from capturo other than can be provided by tho British Fleet.

The Position in Regard to Australasian Commerce.

Beyond any increase in the measure of danger due to the right to convert merchantmen on the high .seas, it docs not appear as though the ratification of the Declaration would materially affect, the relative positions of liritish overseas Dominions and the United Kingdom should Great Britain be at war as with England a belligerent, the dangers of transportation in vessels flying the national flag would be, with the exception referred r to, practically the same were the Declaration ratified or not, and in this connection there is'doubtless food for reflection as to the position Australia and New Zealand would be in as exporters of foodstuffs to tho United Kingdom. Practically the whole of the exports are carried in vessels flying f'ho liritish flag, and therefore would be—subject to tho protection afforded by tho British Vlcet—liable to bo sunk by the enemy from the time they left port until their arrival at thesr destination. Unless the protection referred to was considered adequate the cost of insurance alono might be enormous, and tho question arises would the value of the foodstuffs in Great Britain warrant the expenditure. About dO per cent, of the total English imports are foodstuffs, and of these tho British overseas Dominions contribute one-third. .A|y»ut one-third of IV* lof.nl tonnage employed in tho, transport of English imports is lor- i-_.ii o> >~ .. , ( M; :, t 1)3 remembered that the foreign exporter of foodstuffs, provided he wcro to consign, say, to a Channel port in ono of his own Iwttoms, would be called upon to pay quite a very small rate of insurance as compared with the rate upon the British ship from Australasia. His cargo is immune from danger until such timo as it may leave tho neutral Channel port, and although tho balance of its voyage may cause the rate of instamce to ba materially increased,, it will not be denied for ono moment that it would be small compared with tho rate upon the British ship from the colonies, as it must be palpable that the maintenance by the British fleet of a safe transit to England from such neutral Channel port would bo nothing short of an absolute imperative necessity, whereas the efficient patrolling of 12.000 miles of ocean might not be so. Whilst the total quantity of foreign tonnage employed in tho carriage of cargo from foreign, ports to the United Kingdom amounts to about eleven to twelve million tons annually, it is not improbable that a tolerably close analysis would diseloso tho fact that only a small proportion would bo available, or suitable if available, for tho transport of foodstuffs from Australasia. Whilst the price of foodstuffs in the United Kingdom would inevitably be high, there may bo room to question whether the quantities availablo front foreign countries, which would be trading under moro advantageous circumstances as regards proximity and the rate of insurance, owing to tho transport being in their own neutral vessels, would permit values to reach a,level that would ensure proftablo competition by Australasia, in view of the disabilities attaching to transport in the event of neutral vessels riot being available..

Whilst tho Declaration of London may not be responsible for all the disadvantages ennmeratod concerning tlio transit of foodstuffs to Great Britain, it is responsible for the fact that practically none of these difficulties attach to other European countries (Switzerland excepted), inasmuch as a neutral vessel may carry a. cargo of foodstuffs, one-half of which is destined for England and the other for her European opponent, for discharge at some neutral European port, without risk of capture, but (ho safe transit from such discharge port of tho British portion depends entirely upon tho British fleet, whilo her opponent's share travels without any risk whatever by way of land transit through neutral territory to its final destination.