SECTION 4.-CONTRABAND 26

JURGAN v. LOGAN.

(Court of Sessions of Scotland, 1667. 1 Stair, 477.)

Captain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods, adjudged Prize by the Admiral, upon this ground that he had carried in Prohibit, or Counterband Goods to the Danes, being then the Kings Enemies, viz. Hemp and Victual, and that he was taken in the return of that Voyage, which was instructed by the Oaths of the said Hans and Sailers.

Hans raises a Reduction of the Admirals Decreet on these reasons: First, That the Victual was no Counterband Goods, but such Goods as the King allowed his own Subjects to Export out of England, and

controlled by the number of the blockading forces, but one modern cruiser is enough as matter of law, if it is sufficient in fact for the purpose, and renders it dangerous for other craft to enter the port.

"The blockade in this case was practically effective, and, until it should be raised by an actual driving away by the enemy, it was not open to a neutral trader to ask whether, as against a possible superiority of the enemy's fleet, it was or was not effective in a military sense."

26 "There has been a recent tendency to extend widely the list of articles to be treated as contraband; and it is probable that, if the belligerents themselves are to determine at the beginning of a war what shall be contraband, this tendency will continue until the list of contraband is made to include a large proportion of all the articles which are the subject of commerce, upon the ground that they will be useful to the enemy. When this result is reached, especially if the doctrine of continuous voyages is applied at the same time, the doctrine that free ships make free goods and the doctrine that blockades in order to be binding must be effective, as well as any rule giving immunity to the property of belligerents at sea, will be deprived of a large part of their effect, and we shall find ourselves going backward instead of forward in the effort to prevent every war from becoming universally disastrous. The exception of contraband of war in the Declaration of Paris will be so expanded as to very largely destroy the effect of the declaration. On the other hand, resistance to this tendency toward the expansion of the list of contraband ought not to be left to the neutrals affected by it at the very moment when war exists, because that is the process by which neutrals become themselves involved in war. You should do all in your power to bring about an agreement upon what is to constitute contraband; and it is very desirable that the list should be limited as narrowly as possible." Elihu Root, Secretary of State, to the American Delegates to the Hague Conference of 1907. Foreign Relations of the United States, 1907, pt. 2, p. 1138.

"The distinction-more specious than real-between absolute and conditional contraband practically disappeared in the Great War by the adoption of the practice of considering goods of conditional contraband either to be subject to State control in the enemy country, or else bound for a port of naval or military equipment or a base of supply, all enemy ports being of this character." C. J. Colombos, "Cargoes in the Prize Courts of Great Britain, France, Italy and Germany," The Journal of Comparative Legislation and International Law, 3d series, vol. III, part IV, p. 286 (October, 1921).

declared that there should be no question thereupon, nor upon any Goods, not enumerat in an Act of Council, produced, all which are bellicus Instruments and Furniture, and hath nothing of Victual; and albeit Hemp be Prohibit by that Act, and commonly counted Counterband Goods, yet the quantity Deponed was only sixteen Stones, which is an unconsiderable quantity, and necessar for Calfing the Ship and Sowing the Sails, 2ly, The Pursuer produced the Duke of York his Pass, Warranting this Ship to come from Bergen, and therefore she could not have been taken in her return by any Privateer. 3ly, Whatever might have been alleadged, if the ship had been taken, having unfree Goods in her, there is neither Law nor Custom to sease upon the Ship in her return, when these goods are not in her, for the Ship might have been sold to another, then he that did the wrong; and it cannot appear whether the return was made out of the price of the former Fraught, and though it were, it might be of a hundreth times more. value. And albeit such seasures in return were allowable, yet they could only be sustained when it is evident, at the time of the Seasure at Sea, that the Counterband Goods had been in the Ship that Voyage, either by Bills of Loading, Charter parties, or other Writs taken in the Ship, or by the Oaths, or Acknowledgements of the Company, otherwise upon that pretence Freedom of Commerce would be altogether stopped, seing every Ship might be brought in, that they may be tryed by the Admiral, whether or not, they had in Counterband Goods that Voyage. 4ly, These Strangers could not be in culpa before the Indiction of the War could come to their Ears, but the Indiction of War, was by the Kings manifesto of the Date the ninteen of September, 1666. and this Ship Loosed from Lubeck the 24. of September, within five days after, and so could not possibly know the Indiction, and they Trading, bona fide, as they were formerly accustomed, cannot be seased as injuring the King, in assisting his Enemies, and they did, nor could not know they were such. It was answered for the Defender, that he had walked exactly according to his Commission, bearing expressly all kind of Grain to be Counterband Goods, and being impowered to sease upon any Ship in return, that had carried in Counterband Goods, and that it was in the Kings power leges imponere bello, and that Victual is Counterband Goods. it is evident, not only because it is the first necessary in War, especially for Victualling of Ships, Norway being a barren Countrey that hath little Grain of its own, and produced a Treaty betwixt the King, and the Crown of Sweden, wherein the Swede hath a liberty to carry Counterband Goods; bearing expressly in the Latin Annona, in the Dutch Proviant, which shows, what Goods are accounted Counterband Goods, not only by the King, but other Nations. and for this Seasure in the return, it is not only warranted by the Commission, but upon evident Reason, because the Kings Allies have free Trade, both with Him, and his Enemies, so that they partake not with his Enemies

against Him, by furnishing them Instruments, or Furniture of War; and any privat Party transgressing the same, might, de rigore juris, be seased upon as an Enemie. and it is favour and benignity, that the seasure is allowed only in that very Voyage, in which the wrong is done. As to the Duke of Yorks Passe, Scotland being a free Kingdom, and the Duke not Admiral of Scotland, his Passe, or passing from any Delinquents, can only be Operative in England; and that which is produced is only an Extract out of the Admiralty Court, bearing that such a Ship was Cognosced to be a Lubeck Ship, and so that she might freely passe, which cannot import the Dukes knowledge, much lesse his passing frae her carrying of Counterband Goods, as to the pretence of Trading, bona fide, and the ignorance of the War, no respect ought to be had to the alleadgeance, because the War was begun, and flagrant long before the Lousing of the Ship, and there is no necessity of Manifesto's to indict War, but Acts of Hostility and publick fame of a War, are sufficient to hinder Allies of either Parties, or Neuters to assist against their friends: and here its offered to be proven, that six Moneths before this Ship Loused, many Commissions were granted against the Danes, Prizes taken, and the Kings Subjects taken by the Danes, and declared Pryze at Bergen, upon the account of the War, which must be presumed to be known by the Pursuer and the City of Lubeck being a Hanse Town of Trade, which keeps Intercourse with London, and other Towns of Trade: and as to the Act of Council, permitting the Kings subjects to Trade, even in Corn with his Enemies, it is a special Indulgence in Favours of England only, and could not be effectual as to Scotland, and much lesse to Strangers.

The Pursuer answered, that there Was nothing alleadged to show by Law or custom, that Victual is Counterband Goods, unlesse it were carried in to an Enemy for Relieving a Besieged place, but not when it is but in common Commerce, and if the Lubeckers be hindered to Trade in Corn, or the like, being the only Growth of their Country, their Trade is altogether marred, contrary to the Kings Interest and Intention, who has written to the Emperour most favorably in behalf of the Hanse Towns, for the freedom of their Trade, and acknowledges them his good Allies, and not meerly Neuters, which Letter is produced, neither is the palpable inconvenience answered, if Privatteers may bring in all the Ships, whether they carried Counterband Goods in that Voyage, though they find none in them, neither is there anything alleadged sufficient to instruct, that the Pursuers knew, or were obliged to know of the War betwixt the King and Denmark, before they Loused from Lubeck for any Acts of Hostility, before the solemn Indiction produced, were such Deeds as the Pursuers were not obliged to notice, for the taking and declaring of Prizes doth not include Enimity or War, but may be for reparation of privat injuries without intention to make an open War, although a Pryze of the King of

Britains Subjects had been declared at Buirran, it does not infer, that Lubeck being a free State, at so far distance, behoved to know the same; much lesse, that thereby there was a War betwixt the King and Denmark.

The Lords having considered the whole Debate, were of different opinions, whether the Victual could be called Counterband Goods simply, or only when imported for relieving of Sieges, or for the like War-like use, and whether Ships could be seised in their return, not having actually Counterband Goods in, but especially whether they could be seised without evidence at the time of the seisure at Sea, that in that Voyage they had in Counterband Goods, but they did only Determine the first Reason, and found it relevant, to infer that the Lubeckers was 'in bona fide to continue the Commerce, having Loused within so few days of the Kings Manifesto; and that no other Act of Hostility before, were to be presumed to have come to the knowledge of Lubeck, or that thereby they were obliged to know, that there was an actual War, unless these Strangers' knowledge were instructed by their own Oaths, or that it was the common Fame notour at Lubeck before they Loused, that there was War betwixt the King and Denmark, and the Defenders offering to prove the same.

The Lords granted Commission to the Kings Resident at Hamburg to receive Witnesses above exception, and in the mean time, ordains the Strangers Ship and Goods to be inventared, and Estimate, and delivered again to the Strangers. Upon Caution to make the same or price forthcoming, in case the Defender prov'd, and prevail'd, and with the burden of the Strangers damnage and expences, if they betook themselves to this manner of Probation, and not to the Oaths of the Strangers who were present, reserving to the Lords the remanent Points to be Decided, if the Strangers knowledge of the War were known.

In this Processe the Lords found also that competent, and emitted before the Admiral, could not operat against thir Strangers, qui utuntur communi jure gentium.

THE HAABET.27

(High Court of Admiralty, 1800. 2 C. Rob. 174.)

Sir W. SCOTT.28 This is a question on a report of the registrar and merchants respecting an allowance of insurance on a cargo of corn, seized and brought into this country. The cargo was decreed to be restored, and the registrar and merchants were directed to make a report on the value due to the claimant; such reports are in their nature partly legal and partly mercantile. It is a report proceeding

27 Affirmed on appeal August 10, 1803.

28 The statement of facts and part of the opinion are omitted.

from persons qualified, in both these respects, to form a sound judgment on the subject before them; one of them being, from his connection with courts of justice, supposed capable of forming his own opinion, and of assisting his associates on all questions of law, in the first instance subject to the inspection and correction of the court, whilst the other part of this domestic forum, as I may call it, consists of persons acquainted with.trade, and exercising their judgment on matters relative to commerce. It is from the report of a commission so constituted, that the question is now brought before the court on a subject partly legal and partly mercantile.

* *

The question is, Whether there is any reasonable ground for me to pronounce that the registrar and merchants have disallowed a just demand, in disallowing a charge of insurance which had not been made. It has been argued that this charge ought to have been allowed, because it is usually so allowed in the dealings of merchants with each other. I am not clear that this is a necessary consequence, for it is surely no certain rule that in all cases where a cargo is taken jure belli but for the mere purpose of preëmption, that it is to receive a price calculated exactly in the same manner, and amounting precisely to the same value, as it would have done, if it had arrived at its port of destination in the ordinary course of trade.

The right of taking possession of cargoes of this description, "commeatus," or provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of preemption, that is, to a right of purchase upon a reasonable compensation, to the individual whose property is thus diverted. I have never understood that, on the side of the belligerent, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that, on the side of the neutral, the same exact compensation is to be expected which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, and may be driven, by his necessities, to pay a famine price for the commodity if it gets there; it does not follow that acting upon my rights of war in intercepting such supplies, I am under the obligation of paying that price of distress. It is a mitigated exercise of war on which my purchase is made, and no rule has established, that such a purchase shall be regulated exactly upon the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a reasonable indemnification and a fair profit on the commodity that is due, reference being had to the original price actually paid by the exporter, and the expenses which he has incurred. As to what is to