991
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are to
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THE HONGKONG WEEKLY PRESS AND
addressed to me bis qu-stions, three in number, as follows:-Firstly, whether under the terms of Russia's declara ion the cargo intended for Yokohama and Kobe to shipment from Kaoshima, Okinawa, Anping and Takao by the Pr methene was contraband? If so, whether Russia's declaration in this respect is binding upon neutrals, or whether it is ultra vires.
Secondly, whether the line on which the Osaka hosen Kaisha wished to employ the Prometheus is a privileged line, and if so was it therefore unlawful for a neutral ship to engage in such a trade?
[November 28o1904. expression That clause is as follows :-'
'In case of war | Keeling, Anping, and Takao." I mention this | then is the meaning of the
in its primary senso P-Mr steamer not to be directed to any blockaded port now because he fact has a direct bearing upon traband of war nor to carry any contraband of war." In the a portion of the case for the owners of the hip Whart n, in his "Law Lexicon" defines con- "London Gazette" of the 1st March, 1904, a no- Prometheus. It is on the above briefly-traband of war as meaning in its primary songo
arbitrator has that which according to international LAW - tification from His Majesty's Secretary of State summarised facts that the
cannot be supplied to a hostile belligerent for Foreign Affairs, dated 29th February, 19 4, appeared, the material portion of which is as
except at the risk of seizure and coudemistion follows: His Majesty's Secretary of State
by the aggrieved belligerent. That seems to me a sound definition if you unde stand the for Foreign Affairs has received the following
to mean that risk which is telegram from His Majesty's Ambassador at
word "risk St. Petersburg-" Regulation affecting neutrals
contemplated and r cognised by the law of to be applied by Russia during war with Japan,
nations. Broadly stated then "contraband of published to-day. Declared Contraband of
war" is that which is so considered by the law War:" Here follows a detailed statement of
of nations. The question which naturally be considered
follows is "What do you mean by the law of specific articles, which
nations ?" I answer that the law of nations is unconditional contraband of war, and the declaration concludes as follows:-"Generally all objects intended for war by ses or land This including rice, provisions, horses, etc.' extract from the **London Gazette of the 1st of March, 1904, was published in Hongkong in a Government Notification, No. 253, dated at the Colonial Secretary's Office, 8th April 1904. There had previons'y appear d in the "Go- vernment Gazette " of the 9th March, the following Notification, No 165, dated at the Colonial Secretary's Office, 9th March, 1904 :— "The following telegram from the Secretary of State for the Colonies is published for general information: Russian declaration as to contraband states 88 follows:-' En Both the learned King's Counsel, Mr. Sharp. géneral tous les objets de tinés a la guerre, who appeared for the Osaka Shosen Kaisha, and sur mer ou sur la terre, de même que le Mr. Slade, who appeared for the owners of the riz, les vivres, et les chevaux, bêtes de somm-s, etship Prometheve, are agreed that the charter pa ty autres pouvant servir dans un but de guerre et is to be read as a whole, and that effect should si elles sont transportér pour le compte ou a be given to the real intention of the parties; but, so far as relates to what the intention of destination de l'ennemi."
the parties was when inserting the words " con- taband of war" in the 37th clause, they hold completely divergent views.
or was not to
Thirdly, whether in view of all the evidence brought forward the Osaka Shosen alter, the Kaisha attempted to y'olate, or terms of the charter party as a whole, but parti. cu'arly with reference to Clause 37, by instruct- ing the commander to load a cargo of food- stuffs, and timber, and to proceed to the po ts named in their letter of the 27th April 194 ?
In order to arrive at the true answers to the above questions, the first thing to be done is to determine what is the true interpretation of the charter party as a whole.
It therefo e becomes necessary at the outs t to determine the meaning of those words as used in the charter party. It is the general ra'e of construction of documents that words and expressions should be given their primary sense context unless there be something in the which points out that in the particular document in which the words or expressions appear, such words or expressions must, in order to give effect to the immediate intention of the arties using them, be given some other and peculiar meaning and be understood in a sense other than their primary sense.
1
was
master
The first declaration by Russia respecting contraband of war was ma eat St. Petersbu g on the 14th of February, 904, and was consequently made subsequent to the sign ng of the charter party by the charterers and the agents for the owners of the ship Prom theus. Leaving for the moment the question whether the effect of the declaration by Russ a was make rice, sugar, and other provisions uncon- ditional contraband of war, it is important when considering the true construction to be placed upon the expression entra and of war as used in the charter party and to the determination of the question what was in the minds of the parties at the time of the execution of that document. to remember that the charter party was signed on to 10th Now, bearing that rule in mind I proceed February at a time when though war was expected, to determine what is the primary sense of the the fact that it had actually broken out was expression contraband of war," and t enquire not known to the parties; that the us an wheth r there is anything in the charter party declaration was not issued in Russia until the to warrant me in setting aside the primary 14th Feb uary, 1904-four days aft- r the charter meaning of that expression, and in attaching a party had heen' signed; tha: it was not publish. peculiar meaning thereto. Reference ed in the London Gazett." until the 1st of made in the course of the argument to some March, some twenty days after the signing of thing that had been said by the the charter party: and that it was not no'ified of the Prometheus expressive of his dis- his in Hongkong, where the contract of charter satisfaction and disapproval, when, on
arrival at Honkong he found that his ship was made, until the 9th March-29 days after the signing of the charter party.
'The had been chartered to the Osaka Shosen Kaisha, arbitrator, after citing the treaties which provide and that he would be required to load rice for equality of treatment for foreigners and sugar, and other provisions for Japanese por 8: Japanese, so far as the treaty port trade is but the master had nothing to do with the concerned finds as a fact the following :
agreement to charter the rometheus. In that "Both under existing treaties and prior to the regard the agents. Messrs Sander Wieler & Co. signing of the British treaty of 1894, foreign represented the owner, and as a fact the master did not reach Hongkong until seven days or so vessels, that is to say non-Japanese vessels, were freely allowed to trade with certain other after the sh p had been ob rtered. Moreover, ports in Japan under special permits, and this even han the views attributed to the master been e pressed by the agen's, Sander, Wieler & privilege is extended to foreign vessels to the present day irrespective of whether Japan is at Co., themselves. at the date mentioned, namely peace or war." This finding is borne out by seven days or so after he sig ing of the charter the evidence, and the fact so found has a party, vi lance thereof to affect te construction material bearing upon the argument ́ address-d to be placed upon the language used in the to me on behalf of the owners of the Prome-charter party must have been rejected when their to the effect that the master of the constraing, the charter party, on the principle Prometheus was not bound under the terms of that parol evidence cannot be rec ived to vary the charter which was for "lawful voyages or add to the terms of a written agreement. as used in only to continue voyages to the interports of The expressin “contraband of war," Japan, inasmuch as it was illegal to do so, that the agreemen between the Osaka Shosen Kaisha and the owners of the Prometheus, ma-t, here- is to say that it was unlawful for him, as master of a foreign-owned neutral ship, to fore, be given the primary sense attached thereto at the time of the signing of the ch ter engage her in time of war in the Japanese inter- port trade, that is to say in the coasting pa ty and not any other and particular meaning trade of Japan. It was proved before the whi h it might suit either party in the light of arbitrator that the master of the Prome-subsequent eve te to attach thereto; for I theus had received from the Os ka Shosen Kaisha a letter dated 27th April, 1904, by *hich it appears that they had ordered him to the following Japanese interports, which ports known as non-treaty ports, Yokohama. Kobe, Kagoshima, Okinawa
1
canot see anything in t'e document itself which would justify me in depriving that expression of its primary meaning. The ex- pression contraband of war only appears once in the charter party, and its meaning is in no way affected by anything in the context. What
that system of rules respecting belligerent and reutral rights established by consent among the civilised and commercial nations of the world, partly written and partly arising out of cus tom and rendered stable by judicial decisions
om time to time.
f
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In my opinion. the expression contraband of war has a well-known and accepted meaning among the civilised commercial powers of the world. If that were not so we should not, as we do, find that expression used without defini- ion in solemn treaties between the powers The expression contraband of war" is used without any definition of ts meaning in the Treaty of Paris The inference from of the 16th April, 1856 that fact is, to my mind, irresistible that there was no definition needed, because the expression had the same definite meaning in the minds of al the plenip tentiaries of the Powers parties to that treaty.
The Treaty of Paris, to which Bussia in a party, and to which she still adheres, commences with the following preamble:-" Considering that maritime law in time of war has long ben the subject of deplorable disputes; that uncertainty of the aw and of the duties in such a matter gives ri e to differences of opinion be tween neutrals and belligerents which may occasion serious difficulties, and eve conflicts; that it is consequently advantageous to establish a uniform doctrine on so important a point; that the plenipotentiaries assemble in congress at Paris cannot better respond to the intention by which their Governments are animated than by seeking to introines into international relations fixed principles i this respect." Then immedi ately follows this declaration:-"The above- meution d plenipotentiaries being duly authoris- ed resolved to concert among themselves as to the means of attaining this object; and having come to an agre ment have adopted the follow- ing solemn Declaration:--
“(1.) Privateering is, and remains. abolished. (2) The Neutral flag covers enemy's goods, with the exception of contraband of war
(3) Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag
(4) Blockades in order to be binding, must be effective, that is to say maintained by a force sufficient really to prevent access to the coast of the enemy."
}
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I draw special a'tention to the fact that the expression contraband of war" is twice used in this declaration without being in any way defined. This declaration was designed to give effect to the opinion of the plenipotentiaries expressed in the preamble, viz. that it was to the advantage of the civilised world to establish a uniform doctrine on the subject of mari- time law in time of war; and with that object fired principles." in view to introduce certain At the same sitting of the plenipotentiaries the following resolution was adopted (Protocol No. 24): "On the proposition of Count Wal- ewaki, and recognising that it is for the general interest to maintain the indivisibility of the four principles mentioned in the declaration signed this day; the plenipo tentiaries agree that the powers which shall have signed it, or which shall have coeded to t, cannot hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not, at the same time, rest on the four principles which are the object of the said declaration.
It will be observed that by this Protocol the plen potentiaries of Russia bind that Power not thereaftar to ađőpt`anj Attitnās towards neutrals in time
which
upon the font. principles does not rest enunciated in the declaration. This Protocol
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