Mr. Choate to Mr.
Hay.
American Embassy,
London, August 2,
1904.
No. 1420.]Sir: I have the honor to confirm my cable of
June 3, 1904.
* * * * * * *
Upon the receipt of your instruction setting forth your views, which came
to hand on the 19th of June, I addressed a note to His Majesty’s
secretary of state for foreign affairs communicating the substance of
the same to him and stating that I should be glad to receive and
transmit to you the views of His Majesty’s Government on the same
question as soon as his lordship should have formulated them, of which
note I inclose a copy.
On Saturday last I received from Lord Lansdowne a note in reply, setting
forth the views of His Majesty’s Government on the same subject, which
you will perceive are in substantial concurrence with your own.
* * * * * * *
You will observe that a considerable time elapsed between the date of my
note to him of June 24 and his reply, which bears date July 19, but this
arose from no hesitation or doubt in his mind or in that of his
Government upon the subject treated of, but as he told me at our last
interview his note was prepared very promptly after the receipt of mine,
but its delivery to me was accidentally delayed.
I have, etc.,
[Inclosure 1.]
Mr. Choate to
Lord Lansdowne.
American Embassy,
London, June 24,
1904.
My Lord: Referring to our recent
interviews, in which you expressed a desire to know the views of my
Government as to the order issued by the Russian Government on the
28th of February last, making “every kind of fuel, such as coal,
naphtha, alcohol, and other similar materials, unconditionally contraband,” I am now able to state them,
as follows:
These articles enter into great consumption in the arts of peace, to
which they are vitally necessary. They are usually treated not as
“absolutely contraband of war,” like articles that are intended
primarily for military purposes in time of war, such as ordnance,
arms, ammunition, etc., but rather as “conditionally contraband,”
that is to say, articles that may be used for or converted to the
purposes of war or peace according to circumstances. They may rather
be classed with provisions and food stuffs, of ordinarily innocent
use, but which may become absolutely contraband of war when actually
and especially destined for the military and naval forces of the
enemy.
In the war between the United States and Spain the Navy Department,
General Orders, No. 492, issued June 29, 1898, declared, in article
19, as follows: “The term contraband of war comprehends only
articles having a belligerent destination.” Among articles
absolutely contraband it declared ordnance, machine guns, and other
articles of military or naval warfare. It declared as conditionally
contraband “coal, when destined for a naval station, a port of call,
or a ship or ships of the enemy.” It likewise declared provisions to
be conditionally contraband “when destined for the enemy’s ship or
ships, or for a place that is besieged.”
The above rules as to articles absolutely or conditionally contraband
of war were adopted in the Naval War Code, promulgated by the Navy
Department, June 27, 1900.
[Page 335]
While it appears from the documents mentioned that rice, food stuffs,
horses, beasts of burden and other animals which may be used in time
of war are declared to be contraband of war only when they are
transported for account of or in destination to the enemy, yet all
kinds of fuel, such as coal, naphtha, alcohol, are classified along
with arms, ammunition, and other articles intended for warfare on
land or sea.
The test in determining whether articles ancipitis
usus are contraband of war is their destination for the
military uses of a belligerent. Mr. Dana, in his Notes to Wheaton’s
International Law, says: “The chief circumstance of inquiry would
naturally be the port of destination. If that is a naval arsenal or
a port in which vessels of war are usually fitted out, or in which a
fleet is lying, or a garrison town, or a place from which a military
expedition is fitting out, the presumption of military use would be
raised, more or less strongly according to circumstances.”
In the wars of 1859 and 1870 coal was declared by France not to be
contraband. During the latter war Great Britain held that the
character of coal depended upon its destination, and refused to
permit vessels to sail with it to the French fleet in the North Sea.
Where coal or other fuel is shipped to a port of a belligerent, with
no presumption against its pacific use, to condemn it as absolutely
contraband would seem to be an extreme measure.
Mr. Hall, International Law, says: “During the West African
conference in 1884 Russia took occasion to dissent vigorously from
the inclusion of coal among articles, contraband of war, and
declared that she would categorically refuse her consent to any
articles in any treaty, convention, or instrument whatever which
would imply its recognition as such.”
We are also informed that it is intended to treat raw cotton as
contraband of war. While it is true that raw cotton could be made up
into clothing for the military uses of a belligerent, a military use
for the supply of an army or garrison might possibly be made of food
stuffs of every description which might be shipped from neutral
ports to the nonblockaded ports of a belligerent. The principle
under consideration might, therefore, be extended so as to apply to
every article of human use, which might be declared contraband of
war simply because it might ultimately become in any degree useful
to a belligerent for military purposes.
Coal and other fuel and cotton are employed for a great many innocent
purposes. Many nations are dependent on them for the conduct of
inoffensive industries, and no sufficient presumption of an intended
warlike use seems to be afforded by the mere fact of their
destination to a belligerent port. The recognition in principle of
the treatment of coal and other fuel and raw cotton as absolutely
contraband of war might ultimately lead to a total inhibition of the
sale by neutrals to the people of belligerent states of all articles
which could be finally converted to military uses. Such an extension
of the principle, by treating coal and all other fuel and raw cotton
as absolutely contraband of war, simply because they are shipped by
a neutral to a nonblockaded port of a belligerent, would not appear
to be in accord with the reasonable and lawful rights of a neutral
commerce.
I shall be glad to receive and transmit to my Government the views of
His Majesty’s Government on the same question as soon as your
lordship shall have formulated them.
I have, etc.,
[Inclosure 2.]
Lord Lansdowne
to Mr. Choate.
Foreign Office, July 29, 1904.
Your Excellency: I have the honor to
acknowledge the receipt of your note of the 24th ultimo, containing
the views of the United States Government with regard to the Russian
regulations of the 28th February last, in which every kind of fuel,
such as coal, naphtha, alcohol, and other similar materials is
declared to be absolutely and unconditionally contraband, of
war.
I have the honor to inform Your Excellency, in reply to your request
to be furnished with the views of His Majesty’s Government on this
subject, that the views of the United States Government, as
expressed in Your Excellency’s note, are generally in accord with
those which have been held and acted upon from time to time by His
Majesty’s Government With reference, however, to
[Page 336]
the statement made in paragraph 7 as
to the attitude of Great Britain in 1870 in regard to coal, I would
observe that Her late Majesty’s Government refused in that year to
permit vessels to sail with coal to the French fleet, not merely
because they held that the character of the coal depended on its
destination, but because they held that steamers engaged to take out
cargoes of coal to the French fleet in the North Sea would be in
reality acting as storeships to that fleet.
It is, however, right that I should add that in the altered
conditions of modern maritime warfare, and the ever-increasing
importance of the part played therein by coal, His Majesty’s
Government propose to submit the whole question to careful and
exhaustive examination at an early date, with the object of
determining whether, and in what respects, the British rules, as
hitherto acted upon, are in need of revision.
In these circumstances His Majesty’s Government do not propose to
make any formal protest at the present stage against the Russian
declaration in so far as the question of coal is concerned. They
have, however, already entered a protest against the treatment of
food stuffs as absolutely contraband, and they have pointed out that
they observe with great concern that rice and provisions will be
treated as unconditionally contraband, a step which they regard as
inconsistent with the law and practice of nations.
In that protest it was stated that His Majesty’s Government do not
contest that in particular circumstances provisions may acquire a
contraband character, as, for instance, if they should be consigned
direct to the army or fleet of a belligerent, or to a port where
such fleet may be lying, or if facts should exist raising the
presumption that they are about to be employed in victualing the
fleet or forces of the enemy. In such cases it is not denied that
the other belligerent would be entitled to seize the provisions as
contraband of war, on the ground that they would afford material
assistance toward the carrying on of warlike operations.
They could not, however, admit that if such provisions were consigned
to the port of a belligerent (even though it should be a port of
naval equipment) they must, on that ground alone, be of necessity
regarded as contraband of war.
In the view of His Majesty’s Government the test appeared to be
whether there are circumstances relating to any particular cargo to
show that it is destined for military or naval use.
His Majesty’s Government further pointed out that the decision of the
prize court of the captor in such matters, in order to be binding on
neutral States, must be in accordance with recognized rules and
principles of international law and procedure.
They therefore felt themselves bound to reserve their rights by
protesting at once against the doctrine that it is for the
belligerent to decide that certain articles, or classes of articles,
are, as a matter of course, and without reference to the
considerations above referred to, to be dealt with as contraband of
war regardless of the well-established rights of neutrals; nor would
they consider themselves bound to recognize as valid the decision of
any prize court which violated these rights, or was otherwise not in
conformity with the recognized principles of international law.
I have, etc.,
