Questions of Public Law (1737)
Cornelius van Bynkershoek
Concerning Enemy Goods Found in Neutral Ships
IF a neutral ship is taken carrying enemy’s goods, two questions arise: the one, whether the neutral ship itself, the other, whether the enemy’s goods, are liable to confiscation. As regards the first question, if we follow the ancient laws of the French, even the neutral ship is to be confiscated for carrying enemy’s goods. That this was the old practice in France is apparent from the fact that the Hanse towns were explicitly exempted from such stipulations by Article 3 of the marine treaty between the King of France and the Hanse towns (dated May 10, 1655). Grotius, in the passage cited in the preceding chapter, thinks that this rule of the French does not obtain except when the owner of the neutral ship has consented to the placing of enemy’s goods on board, and in support of this he urges the law of Paulus, in which, as I said in Chapter XII, a distinction is made whether or not the master of the vessel knew that goods were being unlawfully placed on board, with a stipulation that the ship was liable to confiscation if the master knew, but not otherwise. Loccenius agreed with this view. This distinction of Paulus is indeed very important and was of great use in Roman law, but at the present it is of little use if the ship belongs to the captain, for the captain usually receives the goods and attests the fact by a document which is generally called a bill of lading. However, the distinction is of more use if the shipowner is not the captain, and if the goods are taken on board without the owner’s knowledge, as I have stated in Chapter XII. It may, however, be doubted whether other owners are not held responsible if they have entrusted the lading to the captain and he has taken on unlawful goods. It is a general rule that the principal who entrusts an unfit person with a task is held responsible for the faults and the frauds that he commits, and if we make a distinction between the owner who is master and other owners, the rule will entail great difficulties in its application.
But I will not base my objection upon this difficulty. Grant that other owners are held responsible for what the master receives on board even without orders, or grant that the master was commanded to receive the goods, grant even that he always knows what is placed in his ship, granted all this and furthermore that the master wittingly consented to have enemy goods placed on board, even then I should not permit the condemnation of the goods. I do not agree with Grotius that the case which Paulus discusses in the cited passage can be applied to the subject now under discussion, though so far as reason alone may apply, the rules of the law of nations may safely be drawn from Roman law. But I object because Paulus is speaking only of a master of a vessel who knowingly or unknowingly carries in goods subject to revenues, and in such a case it is true that he is committing a fraud if he knowingly carries the goods, for he defrauds the state if he conceals the merchandise which ought to be declared, and wittingly hires or lends his ship to such trade. Accordingly, it is now the general practice approved by the edicts of all sovereigns to confiscate vessels that are employed in smuggling, for the sole reason that they are employed in an illegal act. In Chapter XII I employed this very distinction of Paulus in support of a rule that unless specific treaties forbade, we must condemn neutral vessels which, with their owner’s knowledge, were carrying contraband goods to the enemy, since their owners were engaged in an unlawful act. But now we must stop and consider whether he has transgressed the law of nations who has in his own ship carried the goods of his friend though that friend is your enemy. You, who are my friend, certainly have no right to seize my ship though it carries goods of your enemy. I, being a friend to both, shall serve both with those goods that are harmful to neither; and in the same way, both will aid me with things that are not specifically forbidden. Your enemy may with propriety hire his vessel to me, and I may hire mine to him. About such traders, who indeed act without intent to defraud, I have argued fully in the preceding chapter, and if that holds true we need no longer discuss the question. We may simply lay down the rule that a neutral ship is not liable to confiscation because it has enemy goods on board, whether or not the owner of the vessel knew of it, for in either case he knew that he was engaged in legal trade; and herein his case differs from that of the man who knowingly carries dutiable or contraband goods. Therefore, I do not approve of applying the above-cited distinction of Paulus to this question; I approve rather of the official opinion rendered by the Dutch lawyers which held simply that a neutral ship was not to be confiscated though laden with enemy goods.
Let us now come to the second question, whether enemy goods found in a friendly vessel are liable to be confiscated. You may be surprised that there is any doubt about my right to seize anything that belongs to the enemy, and yet in all the treaties cited in the preceding chapter (in Article 14 of the treaty of December 17, 1650, and in the following articles of the other treaties cited in order: 35, 22, 27, 26, 8, 8, 22) it is simply agreed that enemy goods found in neutral ships are exempt from confiscation, or as we usually phrase it ‘free ships make free goods’, except, however, contraband of war; for these, and these only, are liable to confiscation according to the treaties cited. And I interpret this last clause as referring only to contraband which is being carried to the enemy, for otherwise there is no particular reason why they should be confiscated. You may be surprised that this principle of free ships making free goods was even adopted in the four above-mentioned treaties between France and our republic, dated respectively 1662, 1678, 1697, and 1713, for if these treaties do not permit the condemnation of enemy goods in neutral ships, they much less permit the confiscation of the ships. It follows, therefore, either that the principle of the old French law, which I have mentioned above, has been entirely abandoned, or, what is more probable, that these treaties are to be considered as exceptions to it.
But however this may be, we must rather consider the dictates of reason than the phraseology of treaties. And in consulting reason, I cannot see why it should not be lawful to seize enemy goods found in neutral ships, for this is only taking what belongs to the enemy and falls to the victor by the laws of war. You may perhaps argue that it is impossible to seize enemy goods in a neutral ship without first seizing the ship, and that this act would involve a deed of violence against a neutral which would be as unlawful as attacking our enemies in a neutral port or carrying on depredations in neutral territory. In answer, I would remind you that it is entirely lawful to detain a neutral vessel in order to determine not only from her flag, which might be deceptive, but also from the documents found on board whether she really is neutral. After such a search a vessel proved neutral is dismissed while one proved hostile is seized. Now, since this is considered permissible by every law and is universally practised, it will also be permissible to examine the documents relating to the cargo in order to discover whether any of the enemy’s goods are concealed on board. If any are found why should they not be seized? The Dutch lawyers whose opinion I cited above and the Consolato del Mare pronounce, without hesitation, that the neutral ship is released while the enemy goods are brought into the port of the captor and condemned. But once more I must raise an objection against those authorities when they proceed to assert that the captor must pay the freight or cost of carriage to the master of such a vessel. This is not reasonable, since the freight is not due unless the goods are carried to the port of destination. You may argue that it was not the master’s fault that the goods did not reach their destination, but it is also true that the master took the enemy goods on board at his own risk, knowing that they could be taken and accordingly brought into the port of the captor. He will, therefore, have no cause for complaint if the vessel is released empty, unless he has agreed with the captor to carry the goods to the place of destination, thus transferring his shipping contract to his captor. In the preceding chapter I laid down the same principles in a case which was the converse of this, that is to say, a case in which the ship was the enemy’s, and the goods neutral.
I shall not now undertake to discuss every incident pertinent to the discussion, for if you agree with me and what I have said, you may yourself judge of the justice of what is said by Alberico Gentili and Zouche, and especially about the question which brought the English and Zealanders to such spirited contentions in the early days of our commonwealth. Zouche would release the neutral ships and condemn the enemy goods, but he follows the Consolato del Mare in paying freight to the master, though he would only pay pro rata for the portion of the voyage covered. Even if this last proposal were reasonable, as it is not, it would entail almost insuperable difficulties in the application.
After writing the above I have come upon the collected works of the illustrious Heineccius, which contain a study ‘On the confiscation of ships for carrying prohibited goods’. In Chapter II, section 9, of this essay, he briefly treats the two subjects that we have discussed in this and the preceding chapter. After reading what he says I am so far from altering my opinion that I rather feel confirmed by the judgement of that illustrious authority. If the reader has leisure to compare these views with mine he will understand why I have not seen fit to make any alteration.