Mr. Choate to Mr. Hay.

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.,

Joseph H. Choate.
[Inclosure 1.]

Mr. Choate to Lord Lansdowne.

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.,

Joseph H. Choate.
[Inclosure 2.]

Lord Lansdowne to Mr. Choate.

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.,

Lansdowne.