512 PRIZE LAW DURING THE WORLD WAR
“The term penalty, however, although often mentioned—for example,
in the Commercen (1 Wheaton, at p. 394)—is not in this connection
eally one which implies that the carriage of contraband is attended
ith the usual incidents of the commission of an offence. Neutrals who
arry contraband do not break the law of nations; they run a risk for
a gain, and, if they are caught, they take the consequences. If
they know what they are doing, those consequences may be very serious;
if they do not, they may get off merely with some inconvenience or
delay. This must suffice them.”
he liability of contraband to capture is, of course, not affected
y the nationality of the owner or that of the ship on which it
s transported. By the express terms of the Declaration of
aris, the immunity which it establishes in favor of enemy goods
n neutral vessels and of neutral goods on enemy vessels does
ot apply to contraband of war. Such goods are therefore liable
o capture regardless of the nationality of the vessel in which
hey are laden. While contraband is usually carried on neutral
essels, it may be carried equally on vessels flying the flag of the
aptor state or that of an ally.
Sec. 386. Distinction Between Absolute and Conditional
ontraband. The customary law of nations, and the Declara-
tion of London which was understood to be merely declaratory
f the custom and practice on this point, recognized a distinc-
bn between goods which were susceptible exclusively of military
use and those which were susceptible of use both for military and
ivil purposes. But by measures put into effect by most of the
rt powers during the World War the distinction was
practically done away with, all articles of a contraband char-
acter being inserted in a single list and the same rule regarding
hostile distinction and liability to capture being applied without
regard to their difference of character.?
1 See among others, the French cases of the Cotenten (Fauchille, Jurispr.
ranc. 299), the Narrovian (ibid., 68), and the Kirkoswald (ibid., 441).
2 Sir Edward Grey, in a communication to the American Ambassador at
ndon, dated Feby. 10, 1915 (Supp. to 9 Amer. Jour. 78), said: “Your
xcellency will no doubt remember that soon after the outbreak of war an
order of His Majesty in Council was issued under which no distinction was
drawn in the application of the doctrine of continuous voyage between abso-
ute contraband and conditional contraband, and which also imposed upon
he neutral owner of contraband somewhat drastic conditions as to the
urden of proof of the guilt or innocence of the shipment.”
he decrees and orders of the various belligerent governments by which
the distinction was in effect done away with are listed in Verzijl, op. cit., p.
35. By a proclamation of April 19, 1916, the British government abandoned
he distinction and issued a single list embracing several hundred articles
rranged alphabetically which it proposed to treat as contraband without
egard to whether they were, according to former tests, absolute or condi-
ional contraband. Other governments followed the example of the British
government. The lists of contraband published from time to time may be
