The rule governing the liability of contra band to capture varies according to whether the goods belong to the class of absolute or condi tional contraband. Under the Declaration of London absolute contraband is liable to capture if it is destined to any place within the enemy country or the territory occupied by him; on the other hand, conditional contraband is liable to capture only when destined for the use of the armed forces or for the government of the enemy state, but it is presumed to be destined, when the goods are consigned to the enemy authorities, to a government contractor or to a fortified place or a naval base within the enemy country. These and other rules of the Declara tion are admittedly unsatisfactory. The pre sumptions which it establishes in regard to hostile destination are vague; nothing is gained by condemning conditional contraband goods destined to a government contractor and allow ing those consigned to a private merchant to go free, since the latter can sell to the government as readily as the former may; again every important port is fortified, yet the existence of fortifications is no indication as to the ultimate use of the goods; almost every place in this age of railways may serve as a "base" of supplies; finally nothing is gained by preventing an enemy from obtaining supplies from a "fortified° place, a "base° or from a government "contractor° when he may obtain them with equal readiness from private dealers, through the power of requisition. The penalty for carrying contra band is the confiscation of the goods; likewise, the vessel carrying the goods may according to the Declaration of London be condemned if the contraband constitutes more than half the cargo. Whether the captor may sink the ship with its cargo if he cannot take it in to a home port was raised during the Russo-Japanese War in 1904 when the Russians sank the Knight Com mander, a British vessel laden with contraband goods destined for Japan. The British govern ment denied the legality of the act and de manded the payment of an indemnity by the Russian government. The sinking by a German cruiser during the European War of the American sailing vessel William P. Frye, laden with grain destined for England, evoked a protest from the government of the United States. In consequence of treaty stipulations between the United States and Germany, the German government agreed to compensate the owners of the vessel. But in the case of the
Maria, a Dutch vessel carrying 'contraband to England and sunk by a German cruiser, the German government declined to make compen sation to the owners of the ship, there being no treaty between Germany and the Netherlands similar to that between Germany and the United States. Many other neutral vessels laden with contraband have been sunk by German naval commanders.
Inasmuch as the majority of controversies between belligerents and neutrals are usually connected with trade in contraband and in view of the lack of agreement concerning what is and what is not contraband, it has been proposed to abolish the right of belligerents to inter fere with such trade and to leave them merely the right of blockade. Such a proposal was made by the British delegation at the second Hague conference in 1907. The supporters of the British proposal pointed out that the right to interfere with trade between neutrals and belligerents is out of harmony with modern conditions; that the number and variety of contraband articles have greatly increased; that the increased size of ships has made search on the high seas more and more difficult, thus necessitating the taking of them in to distant ports and subjecting shippers to ruinous delays; and that improved railway facilities have made it impossible to prevent contraband from reach ing belligerents. As evidence of the growing dissatisfaction with the existing rules in respect to the right of belligerents over contraband trade, it may be remarked that the British proposal received the support of 26 of the 35 states which voted on the proposition, only five voting against it. Another proposal which has been widely approved is the abolition of condi tional contraband and the substitution of a single list of articles, by general agreement, these to be liable to capture if consigned to any person or place in the enemy country. See CONTINUOUS VOYAGE; SEARCH, RIGHT OF; BLOCKADE.
In addition to the treatises cited under INTERNATIONAL LAW, consult Atherly-Jones, 'Commerce in War' ; Bentwich, 'The Declaration of London' ; Cohen, (The Declaration of Kleen, (De la contre bande de guerre' ; Pyke, (Contraband of War' ; Von Ferneck, (Die Kriegskontcrbande.>