CONTRABAND OF WAR
511
contraband were susceptible of extensive military use. Thus it
came to puss that the old distinction between absolute and con-
ditional contraband largely disappeared.
Sec. 385. Carriage of Contraband No Violation of Inter-
national Law. While the capture and confiscation of contra-
band of war, whoever the owners and whatever the nationality
of the ship on which it is laden, is a lawful belligerent right
recognized both by the customary and the conventional law of
nations, those who engage in the transportation of it either as
shippers or carriers, are not deemed to be violators of the law
and the confiscation of it by the captor is not regarded as a
penalty for the commission of an offence. This principle was
admitted and frequently asserted by the Prize Courts during the
World War. In the case of the Kim and Other Vessels No. 1
Sir Samuel Evans declared that neutrals were within their rights
in endeavoring to send both conditional and absolute contraband
to the enemy; that it was no crime to do so and that the only
liability they incurred was the risk of capture. In the case of
the Alwina * he pointed out that the terms “offence” and “pen-
alty” often used in referring to the act of transporting contraband
and the confiscation which resulted from capture were incorrectly
used, but he added that the use of such terms did no harm so
long as it did not produce confusion of thought. In the Kron-
prinsessan Margareta and Other Vessels ® the Judicial Commit-
cee, adverting to the use of the terms “penalty” and “punish-
ment” observed that they were “unsuitable terms” since their use
might seem to cast doubt upon the right of neutrals to ship or sell
contraband.* Traffic in contraband goods, though often spoken
of “as if it were a guilty departure from the neutral duty of im-
partiality, is now well recognized as being in itself no trans-
gression of the limits of a neutral’s duty, but merely the exercise
of a hazardous right, in the course of which he may come into
conflict with the rights of the belligerent and be worsted.” In
the case of the Prinz der Nederlanden® Lord Sumner, adverting
to the use of the term “penalty” in connection with the confisca-
tion of contraband. said:
*1IT Lloyd 167; I Br. & Col. Pr. Cas. 405.
*V, ibid., 127; II, ibid., 186. * VIII, ibid., 241; III, ibid., 803.
* Compare also the observations to the same effect of the Judicial Com-
mittee in the Louisiana and Other Vessels (V Lloyd 248), where Lord
Parker said: “It is well to bear in mind that, according to international
law, neutrals may, during a war, trade freely as well with the belligerents as
with other neutrals.”
*VI Lloyd 208; III Br. & Col. Pr. Cas. 951.
