November 28, 1904.)
has an important bearing upon the contention at the Bar that Rusia as an independent sovereign state poss-sses, as a concomitant to the right to make war, the right to declare what shall or shall not be considered contraband of war,
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I dwell here upon the fact that the expression "contraband of war' occurs twice in the declaration in the Treaty of Paris; that the expressions "Privateering and "Blockade occur each once; and that there is in that declaration no definition of the meaning of any of those expressions. Why was there this omission to define these expressions? Was it not because they each had in the minds of the Plenipotentiaries of the Powers a recognised meaning at the time when the tr aty was signed and because the expression Cou traband of War" no more needed definition than the expressions "Blockade" or "Privatee ing" did? What then was the meaning which it must fairly be assumed the Plenipotentiaries attached to the expression "Contraband of War" as used by them in the Treaty of Paris? It seems to me that the Plenipotentiaries had in their minds the meaning which at that time attached to the expression Contraband of War" esulting from the decisions of the courts of law of the nations of Europe and America; principally indeed the decisions in the English Courts on cases arising during the Napoleonic War. What then is the result of those decisions? What meaning has been thereby attached to the expression "Contraband of War" The result has been to attach to that expression the following twofold meaning :-() Absolute contraband of war-which includes everything useful for war only; (2) That which is conditional contraband of war which includes all things which though useful for both peace and war become contraband if destined for the purposes of war, excluding from the meaning of contraband of war such things as are useful for
of purposes
peace only.
the
a pa ty.
It is moreover to be remarked in connec-
CHINA OVERLAND TRADE REPORT: by the several Powers signatory thereto, given in the Protocol No 24, not to depart from the principles enunciated in theclaration, I think that Russia was not at liberty to declare pro visions unconditional contraband of war; and that her declaration in tht respect could not affect the contract between the paties to this charter party, even supposing it could be held that contrab. nd of war means, as used in the charter party, whatever Russia may consider as such: for Russia having been a party to the solemn decl ration of "fixed principles "under the Treaty of Paris was not at liberty to disregard tho e principles and was therefore bound to recognise, and act upon, the generally accepted rule of international law that provisions are not unconditional contraband. In this view I am supported by the decision in the case of Pollard. Bell, 8 Term Reports 424, where it was laid down that it is not competent to one nation to add to the law of nations by its own a bitrary ordinances without thé concurrence of other nations! Against the view which I hold, viz. that provisions are by the law of nations only conditional contraband, and that they were so regarded by the signatories to the Treaty of Paris, 1856, it was urged that not- withstanding that trea y the French when en- gaged in hostilities against China in 1885 intend ed to treat as contraband all shipments of ice des tined to the open ports north of Canton. hat fact. however, only amounts to this: that on that occasion France proposed to act in a man- ner which, had she been called upon to defend, she would have found difficulty f justi- fying, in the fac of the d claration under the Treaty of Paris to which she was Fortunately preliminaries of peace were souled before any seizures were in fact made by the French, and so the intended action of France cannot properly be drawn into a precedent against the principle enuaciated in Pollard v. Boll, Provisions," con sequently, come within the definition of condi tion with this inte ded action on the part of tional contraband only, if and when destined for France in 1883 that her right to make provi. the enemy's forces; otherwise they are excluded sions unconditional contraband was at the time from the definition. That is, in my opinion, denied by Great Britain. In Pollard v. Bell. the true meaning t be attached to the decided in 1800, a French Prize Court, France expression Contraband of War." and that is then being at war with Great Britain, and Den- the sense which, in my opinion, that expression mark being neutral, condemned a Danish bears on a true construction of the Declaration [ ship on the Fraud that she Was at of the Plenipotentiaries who signed the Treaty
the time of capture carrying a Scotchman of Paris of 1856. That is, in my opinion, the as supercaryo in violation of an Ddinance sense in which the parties to the charter of the by which it was de lared that all ships ship Prometheus must be taken to have under should be confiscated "wherever there shall be stood the expression “ontraband of War" when found on board a supercargo, merchant, com- they agreed by Clause 37, that the ship Prome-missary, or chief officer being an enemy." In thens was not to carry any Contraband of dealing with the ground assigned by the French Court condemning the ship hief Justice Lord War." To construe that expression as meaning whatever might at any time, that is to say from Kenyon said "this is one of the numberless time to time, be declared by Russ'a to be questions that have arisen in consequence of the contraband. as the learned counsel for the extraordinary sentences of condemnation passed owner contended I should, would be to import by the courts of Admiralty in France during ŝinto the contract between the parties an element this war
to a question asked in the of uncertainty where none need exist. The course of the argument, what are the rules on contract was made in Hongkong, and therefore which the Courts of Admiralty profess to in the absence of evidence to the contrary proceed, I answer, the law of nations, and sucb which I could act upon the parties must be treaties as particular states have agreed shall taken to have used the expression "Contraband be engrafted on that law. It was said by of War" in the sense in which it is understood the defendant's counsel that an ordinance has in British courts of law, which is its seuse in the same force as a treaty, but without stopping International law. It cannot be successfully to enlarge on the difference between them it is contended that provisi ns would be regarded sufficient to say that the one is a contract made by British courts of law as unconditional by the contracting parties and that the other contraband of war, or that there is any likeli- is an ex-parte ordinance made by one nation hood that they will ever take that view. Had only, to which no other state is a party; this court been asked at any time between the and I concur with Lord Mansfield in opinion
the 10th
to competent signing of the charter party on February 1904 and the issuing of the Russian to add to the law of nations by its own declaration to construe the meaning of the arbitrary ordinances without the concurrence words contraband of war it cannot be doubted of other nations." Continuing, his lordship that it would have excluded provisions from said "let us see what was the foundation of the the category of unconditional contraband. condemnation in the French courts. It is It is contended however that the court ought to stated that by their ordinance all ships are to be place a different meaning on that expression, confiscated whensoever on board those ships after, and in view of the terms of the shall be found a supercargo, merchant, com- Russian declaration: inasmuch
BS Russia missary or chief officer being an enemy, but I being a sovereign independent Power has say they had no right by making such prerogative right to declare pleases to be contraband of war in any war in which she may be engaged, and that the effect of the Russian declaration having been to make provisions unconditionally contraband, the mas- ter of the ship Prometheus was excused from loading them on his ship. In this contention I am unable to concur. In the view which I take of the offect of the Declaration under the Treaty of Paris of 1856, and of the undertaking
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that it is
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French ordinance which, departing from the recognised custom of nations, decreed that a ship might be sondemned merely because shë ëarried anfficer of the nationality of the enemy. Applying the principle of that case to the present case, I say that the Russian de claration including provisions among the list of articles absolutely contraband and so depa ting from the recognised` custom of nations had no binding effect проп other nations, and consequently could not excuse the non-performance of the contract under the charter party between the Osaka Shosen Kaisha and the owners of the as. Prontetheus. It was contended on behalf of the owners of the Promethens that the term law as applied to this recognis d system of "principles and roles kuown as international law is an inexact expression, that there is, in other words, no such thing as international law; that there can be no such law binding upon all notions inasmuch as there is no sanction for such law. that is to say that there is no means by which obedience to such law can be imposed upon any given natio” refusing obedience thereto. Ido not concur in that contention. In my opinion a law may be established and become interna. tional, that is to say binding upon all nations, by the agreement of such nations to be bound thereby, although it may be impossib e to enforce obedi nce thereto by any given nation party to the agreement. The resistance of a nation to a law to which it has agreed does not derogate from the authority of the law because that res stance can ot, perhaps, bevroome. Such resistan e merely makes the re-isting nation a bres er of the law o whic it has given its adherence, but it leaves the law, to the establishment of which the resisting nation was a party, still subsisting. Could it be successfully contended that because any given person or body of persons po-sessel for he time being power to resist an established municipal law such law had no existence ? The answer to such a contention would be that the law still existed, though it might not for the time being be, possible to en orce obedience to it. My answer to the first question put to me by the arbitrator must ther fore. for the reasons I have giv n, be (1) that the cargo intended to be loaded by the charterers on the steamship Prome. theus wasnot contraband of war within the mean- ing of the charter party; (2) that the Russian declaration constituting provisions uncondi- tional contraband was not binding upon
neutrals who were no party thereto, and consequently has no bearing upon the sonstrac- tion of the charter party between the Osaka Shosen Kaisha and the owners of the ship Promethe is.
The remaining question, the second and third put to me by the Arbitrator, present no difficulty. With respect to the second question, in my opinion the engagement of the Prometheus by the Osaka Shosen Kaisha for employment in the Japanese coasting trade, that is to ray in the interport trade of Japan, was in no sense illexal. The propriety of such voyaging was never questioned by anyone until the solicitors for the owners took the point before the Ar itrator that the interport trade of Japan was a privileged one; and that con- s-quently it was ilegal for the neutral ship Prometheus to engage therein during the existence of hostilities. In other words; that such trading came by analogy within the principle of what is known as the rule of the ship rendering captured and taken to Russian Prize Court for adjudio tion! It is not necessary to consider whether the rule of the war of 1756 is obsolete, as contended by Mr. Sharp, or not; for in my opinion even if it were in full force and effect it would have no To
war
nation the
of 1756 l'able to be
What was
the ratio decidendi in this case? The decision was based on the ground that the French ourts had, in accordance with a French ordinance which was opposed to international law, decided a ship was liable to be condemned merely because she carried on board an officer whose nationality was that of the enemy. Such then was the view expressed by Lord Kenyon as to the value and effect of a
application to the facts of this case. have made that rule apply, the ports been totally closed traded to must have before the war to all but Japanese subjects; and must only have been opened to others after the war, and because of the pressure and necessity of the war due to the preponderating naval supremacy of the belligerent enemy. In point of fact no such pressure and necessity has existed i this war on the part of Japan. Owing to the fortunes of war the naval forces of Japan have from the outset of the war gained angel dancy securing immunity to her ports f naval force of the enemy. It is found