CO885-(13-15) — Page 719

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—–NOT TÔ

Italian Code, but on general international law, and is in terms applicable to the present case. We believe that the same doctrine has been laid down by high authorities in Germany, but we have not yet had the opportunity of verifying this. Moreover, Her Majesty's Government declined to interfere, and so far as we can gather did not dissent from the view taken by the American Courts in the case of the Springbok," and the Law Officers have consistently advised in this sense. (The Springbok" 19th February, 1864, 16th May, 1864, 29th July, 1867, 21st July, 1868, 7th December, 1868, and 15th February, 1869, and the "Peterhoff" 12th April, 1864.)

"

A

This question of "neutral port can hardly ever be raised with reference to cases in which at the time of seizure the contraband of war was the property of the enemy by virtue of consignment to him. In such cases contraband of war must be liable to seizure. Before the Declaration of Paris all enemy's goods were liable to seizure though under the neutral flag. That Declaration gives exemption to goods not being contraband of war. Those which are contraband of war remain as before. Where the goods being of the nature of contraband are consigned to him or his agent, they are the enemy's property, contraband of war on their way to the enemy, and must be subject to seizure.

If at the time of seizure the alleged contraband of war was neutral property, the question of "neutral port" becomes material only, if it is the true and ultimate 'destination of the cargo, as well as the ship.

We think a reply should be framed in answer to Count Hatzfeldt's letter of the 4th instant, pointing out the distinction above referred to, and stating that the "Bundesrath was properly visited and taken into Durban on the ground that she is alleged to have been carrying contraband of war which was at the time of seizure destined for the enemy.

Care must be taken as to the language of this reply, because there is a passage in Earl Russell's despatch of the 23rd January, 1862, in connection with the case of the mail-ship Trent" (see p. 221 Bernard's) which states the proposition somewhat too broadly.

LL

A reply to the effect above indicated should at once be sent to the Governor of Natal. Instructions should also be sent to press on the proceedings in the Prize Court, and to examine the ship's officers in accordance with the usual practice, and we think that the Governor of Natal should be informed fully by cable of the effect of this report.

The Marquess of Salisbury, K.G.

&c., &c.,

&c.

We have, &c..

RICHARD E. WEBSTER. ROBERT B. FINLAY.

1611.

No. 4.

(SOUTH AFRICA.).

*

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

We were honoured with your Lordship's commands signified in Mr. Bertie's

Royal Courts of Justice, January 8, 1900. letter of the 6th instant, stating that with reference to his other letter of the same date, respecting the case of the German mail-steamer your Lordship to transmit to us a note from the German Ambassador, asking for the Bundesrath," he was directed by immediate release of the "General. as the Bundesrath," and asking that explicit instructions might be issued to the a steamer of the same line of German mail-steamers Commanders of British ships in African waters to respect the rules of international law, and to place no further impediments in the way of the trade of neutrals,

That the only information as yet received by her Majesty's Government respecting the case of the "General" was, that she was detained at Aden on strong suspicion (of what offence was not stated) and was being searched (by whose orders was not at present known).

That Mr. Bertie was to request us to favour your Lordship with our advice as to the answer which should be returned to this note, and also with any general observations which we might be able to offer on the case.

In obedience to your Lordship's commands, we have the honour to

Report--

That if the facts respecting the mail-steamer "General" are as stated in Count Hatzfeldt's letter of the 5th January, the action of the officials at Aden cannot possibly he supported.

The duty and the only right of a belligerent visiting and searching a vessel which is suspected of carrying contraband is to take her in for adjudication to a

Prize Court.

The captors have no right to unload the cargo themselves; any further examination or interference with the cargo must be by order of the Court. This is expressly provided by section 16 of "The Naval Prize Act, 1864.” steamers no action beyond visit and search of the usual character should be taken unless We must point out in the ease, of mail- there is strong ground for believing that there is contraband of war on board, and if the ship's papers, manifest, and invoices of cargo are in order, and the search discloses no contraband, and there has been no conduct on the part of those on board the ship to justify detention, the vessel should not be detained.

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The greatest caution should be exercised in stopping and taking in mail-steamers owing to the serious public interests involved, and the risk of heavy claints should the capture turn out to be without justification. (See Earl Russell's despatch in the “Trent case of the 23rd January, 1862, cited, Bernard, neutrality, &c., p. 221.)

Immediate inquiry should be made into the facts respecting the General," and if they are as stated in Count Hatzfeldt's despatch, the vessel should be immediately released, and an apology tendered, and compensation paid.

..

The telegram to the Admiralty of the 5th January and the letter from the Admiralty of the 6th January afford no ground for modifying these conclusions, but confirm them.

We would suggest that the instructions to search with " the utmost rigour," conveyed by telegram No. 60, are liable to be misunderstood.

British cruisers should be instructed to conduct the visit and search in the usual way, and with courtesy and forbearance, especially in the case of mail-steamers, facilitate an effective search if the cruisers immediately engaged on this work had the assistance on board of experienced Custom-house searchers.

It might

The vessel can be detained only if the search discloses adequate grounds of suspicion. She must then at once be brought before a Prize Court, which alone can authorise the removal of any part of the cargo.

The Marquess of Salisbury, K.G.,

&c., &c.,

&c.

We have, &c..

RICHARD E. WEBSTER. ROBERT B. FINLAY.

4776-25-1,1900 WL 499 D&S

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