I am therefore to request you will add to the case now under preparation, for the opinion of the Law Officers of the Crown, the following further questions:-
*
1. In the event of a British merchant vessel within the territorial waters of Portugal at Delagoa Bay being suspected of having on board contraband of war, is it competent to Her Majesty's ships to visit and search her, and, if the suspicion of belligerent destination is verified by the search, to detain her, or the contraband goods, or both ?
2. If so, would similar action he justifiable in the similar case of a suspected ship belonging to a neutral State ?
3. If in either or both of the above cases detention is justifiable, what would be the proper legal method of dealing with the ship, or contraband goods, "or both ?
Admiralty, October 5, 1899.
THE SECRETARY,
By command of their Lordships,
Enclosure 3.
EVAN MACGREgor.
October 11, 1899. I TRANSMIT herewith original opinion of the Law Officers received from the Solicitor-General this morning. A
J. F. CHANCE.
27595.
No. 231.
(SOUTH AFRICA.)
ATTORNEY GENERAL to COLONIAL OFFICE.
In my opinion Her Majesty's Government cannot be forced into a declaration of war by the concluding words of the Transvaal Government's Note of the 9th October, but in view of the terms of that Note they will, in my judgment, be justified in taking steps to protect British interests.
In the event of any shipments of arms or other contraband of war to the South African Republic being suspected, ships, whether British or Foreign, should be visited and searched, and if arms or other contraband of war be found on board and it is suspected that their real destination is to the South African Republic, or one of its agents, the ships should be stopped and taken in to a Prize Court for adjudication. In the case of a foreign
ship this is the only course which can legally be adopted. The risk which is run will be the possibility of having to pay damages in the event of the decision of the Prize Court being against Great Britain. If the Portuguese authorities can be trusted to carry out the strangement made with Lord Salisbury as to Lourenco Marques, seizure of arms destined for that port may be unnecessary, but, in my opinion, if goods consigned to an agent of the South African Republic are allowed to reach their destination at Lourenco Marques, refusal by the Portuguese authorities to hand them over to the Consignee may give rise to considerable difficulties between the Portuguese Government and that of the South African Republic.
October 11, 1899.
RICHARD E. WEBSTER,
Attorney General.
CONTRABAND OF WAR.
Right of Search.
Opinion of the Law Officers,
1. AFTER the outbreak of war a merchant vessel belonging to a neutral State may be visited on the high seas, or in the waters of the belligerent nations, and if found carrying contraband of war belonging to the enemy may be seized and carried into port for adjudication before a Prize Court.
It depends on the circumstances whether the ship, as well as the cargo, is liable to condemnation. The fact that the contraband is consigned to a neutral port will not affect this liability.
2. Where a neutral vessel carries contraband of war belonging to a neutral it is prima facie not liable to seizure if it is consigned to a neutral port. It would not be liable to seizure if bonâ fide consigned to the neutral port for the purpose of being sold there, even if the purchaser would resell to the enemy. This was the view asserted by this country in the case of the "Springbok during the American
civil war.
We think that it would be liable to seizure, though belonging to a neutral, if it was to be delivered at a neutral port to the agents of the enemy to be forwarded for use by him, or if it was at the time of seizure intended to be sent on from the neutral port to the enemy-in other words, if its ultimate destination at the time of seizure was the enemy's country. This case, however, may raise questions of much difficulty and delicacy, and the rules of international law upon it cannot be said to have been finally
Bettled.
3. We think, as above stated, that the contraband would still be liable to seizure, though consigned to a neutral port. if this was merely a step on the way to a belligerent destination.
No visit or seizure can be made in the territorial waters of a neutral Power.
If the Portuguese can be induced to prevent Lourenço Marques being made an emporium for traffic in contraband it may obviate the occurrence of troublesome questions with neutral Powers as to such consignments.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
Lay Officers' Department, October 1899.
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