The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-02-28

time StafS have long be6n 0SpcScd
| to accept tho threefold classification
Of articles of commerce announced by
Grotius in 1925. Articles adapted
solely to the use Of war, such as
guns and projectiles, have been no
garded as absolute ~contraband and ss
| such subject to capture when destined
tn belllgerent territory. Articles not
adapted for warIke Iisss ave not been
deemed to no contraband under any
| circumstances. Articles. however. siIs-
ceptible of use in the pursuit OF peace
as we'll as in that of war have C
pied a middle ground and have been
| described as conditional c~ontraDand.
with respect to this claas greatest
difficulties have arisen. Nations have
not agreed generally as to what ar
tiCles should he 30 regarded: nor have
they agreed as TO the circumstances
when conditional c~ontraband Is sub
jet to seizure and condemnation. As
has been seen. rfr~ United States as
serts with confidence that articles
such an foodstufrs affair no contra
ba nd character by reason OF bing
destined merely tn the territory Of a
belligerent and that they only become
subject to capture and condemnation
WHEN shown to he destined for n dis
t~inctively military or naval Use of a
heligerent.
Thus 1t IL not only the usefulness
Of such articles To a b%elligerent that
makes them c%ontraband. hut the proof
that they are in fact drytined for
a public military service. A scrtous
difficulty that confronts maritime ma
lions in dealing with the matter to-
day IL n Of proof. The question
is: When Is a cargo Of foodstuffs, for
example, to be regarded by q bellig-
erent cruiser and by a prize court in
the country Of the captUr destined in
! act for the use Of the encmy>e forces
ratfsr than for the enemy's non-com-
hatant population?
Or LEI us put the question IN an
other way: On whom L. the burden
Of proof 70 show whether the caryc
h cortrahs nd or nUt7 II must b. clear
ON principle that II q neutral shipper
has the right to Bnd foodstufHe to tire
territory Of a beltcerent State tho
proof teiat they arr destined for q beaA
ligcrerr y by MILITARY or naval
forces should BE- made by the captor.
The mere possibility Of ss1ch Use
shonld not suffice 70 stamp an other
wrsc innocent transaction with an n
legal character.
The ~ utral trader selling his grain
in TN best Of faith - tho private in
~diy!du1ls of - helligcrent state should
not be- compelled to prove that no part
Of I might eventually come 10 the
hands ot the enery's forces. As Sec
rotary Hay well SAID in 1904. such
proof Is Of an impossible nature. and
i cannot he admitted that the ahserr.
Of proof. in its nature impossible To-
make, can Justify the seizure and con
demnatiou."
England o-6ay asserts the right 70
capture any orr Of ~cun-raband.
whether conditional or absolute.
whether foocstuns or prcjectiles on
board OF n neutral vessel destined for
a neutral por', II tho ultimate dwtina-
ton OF the cargo is hostile.
Thus far rho Department Of State.
by reason Of the previous attitude of
the United States when n belligerent
and by reason of the assertion of the
cnctr1n" Of continuous voyage by
American courts, has hesitated to de-
clare that the right asserted by Great
Britain is contrary 10 international
law. The department has. however
mtde earnest representations to Great
Britain protesting aEl-nst the seizure
and detention 10y Br tish authorities @,
.Amer"In bona fde de- med
10 neutral ports.
Let MS turn &" the practical opera
tiun of the prinC.pl" Of conditional CON
! t~r1nand IN relation 10 ~foodstuns. with
regard 10 th.ir eiZu Sir Edwar.
Grey declared on January : m his pre-
luinary Response 10 Mr.. Rryan's not
that his Naicsty's Government "ars
prepared TO admit that foodsturs
should not be detained and put into q
prize court without presumption ina
they are intended for the armed forces
of the eremy or tho eneniy Govern.
ment."
By an o-!er ~ the cnuncn Of Octoh.
-. l?li his Natcstv'S Government
announced that Conditional c%ontrahan,
telnhracing ioo,istuftsD should hc llabl,
to capture on board - vessel bound fol
q reuirt. port If the goods were con,
signed TO order or II the ships pa.
p""s did not show who was the con.
.Gnec ~ the goods. or II they shove,