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§ 553.

966

in article 46 The correct f inding, in my view, is that the vessel, being

a neutral vessel, was carrying contraband —- namely, coal — intended to be delivered to enemy agents or enemy vessels of war, encountered on the voyage; and that she was so carrying the contraband with false papers, with a suspicious supercargo, with a false destination, and in circumstances amounting to fraud in regard to belhgerents." [Voir aussi § 527. j

Dans le même sens : Alwina (901) et la décision postérieure relative a VEdna (1096).

Dans cette dernière affaire les cours anglaises n'ont pas seulement essayé de tracer une ligne de démarcation entre l'assistance hostüe et le transport de contrebande de guerre, mais encore de faire une distinction entre les navires de commerce se rendant coupables d'assistance hostile et les „fleet auxüiaries". Voir la citation suivante du jugement d'appel relatif au vapeur Edna-Mazatlan (1375), qui avait réussi a transporter au croiseur allemand Leipzig ou a son „tender" Marie un appareü de télégraphie sans fil et un chargement de charbon [comp. concernant ce navne § 230]:

„There is evidence given by Admiral Sir W. R. Hall, then Dbector of the Intelligence Division of the Admbalty, that „before the outbreak of the present war the German Government had made plans and arrangements whereby at various ports on the western coast of North and South America merchant ships were to be provided to act as fleet auxüiaries to the German cruisers operating in the Pacific" ; and it is contended that Jebsen was a German agent, who arranged that the Mazatlan should so act. No définition is given of a „fleet auxiüary", nor is it shown to be a term of art. It does not appear to have been considered by any Court before this case. Doubtless a fleet auxiüary renders help to a fleet, but what help, or what fleet, is in this connection another matter. The evidence above quoted is not contradicted.... [suit un résumé des faits]. ..

Jebsen was obviously a wüling party throughout to the assistance wnich was being arranged for the Leipzig, and no doubt the proceedings were concerted with the Leipzig's officers, for otherwise they might have proved abortive. There is, however, no ground for supposing that the Mazatlan was under the orders of the Leipzig or was otherwise connected with her than as rendering the service of placing coal and other things where she or the Marie could get them, and as volunteering information, of which it was hoped that she would make use. Had the Mazatlan's character been Mexican, as her legal ownership was [comp. § 230, (1)], what she did would havcbeen a highly unneutral service. It is, however, a totally different thing to establish that these proceedings, which prima facie were those of a private merchantman, although controüed by a person of accommodating and zealous disposition, reaüy prove that she was a ship which could not be transferred to neutrals at all during the war... [Vob a ce sujet particulier ci-dessus § 223bl8.]

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