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§ 560.

992

rendered vinder compulsion nevertheless she is liable to condemnation because of such service. The service, it is said, consisted in her carrying coal for the enemy.... It is clear from the authorities that if a neutral ship is chartered or employed by the enemy government for service connected with the war it will be liable to condemnation on captme.... (citation des décisions Rebecca [1807], Quang-nam [1905]).... The case chiefly relied on as supporting the contention that condemnation must follow, even where the service or employment originated in acts of dmess or violence on the part of the belligerent, is the Carolina, and the case of the Orozembo has been particularly referred to . . . . The present case does not seem to me to fall within the principles laid down in either of these cases, though there are passages in the judgments which might at first sight appear applicable toit. . .. [argumentation détaillée].... Both these cases seem to me to differ in principle from the case under consideration. The voyage of the Carolina was unneutral from its commencement; she was navigated by her own master under a contract with the French Government which, though it originated in acts of dmess, was nevertheless a contract.... The Orozembo also was clearly in the service of the belügerent government, though the master may have been ignorant of it. . . . But in the present case the voyage of the Pontoporos commenced as a perfectly lawful and innocent voyage... Then came the capture by the enemy and the navigation and control of the ship by the enemy officers. The master never in any way assented . . . . to anything that was done by the enemy to the ship or the cargo after the captme; he was in fact a prisoner, and the saf et}' of himself and his crew depended on his preserving an attitude of passive inactivity .... There are eminent authorities who think that the judgment in the Carolina was wrong (Hall, Westlake). If itwas wrong to condemn the Carolina, a fortiori it would be wrong to condemn this ship. — Assuming that the Déclaration of London is binding on this Court (though I am not deciding that it is), I hold that this ship does not come under either of the f our headings of article 46 ... . Articles 45, 46 and 47 are all grouped under the heading „unneutral service" or „assistance hostüe", and, in my opinion, the use of that term impües some act or acts in violation of neutrahty on the part of a neutral having authority over the neutral vessel, and the existence of some contractual relation, such as that of employer and employee between the belügerent and such neutral. No such relation existed in this case. It is said that whüe article 45 speaks of knowledge on the part of the owner, charterer or master, article 46 omits knowledge, and that therefore knowledge is not required on the part of these persons. Yet it is admitted that the offences contemplated under article 46 are more serious than those under article 45. I am satisfied that the construction put by Mr. Oppenheim upon article 46 (page 528), that mens rea is obviously .always in existence and therefore always presumed to be present, is the only reasonable construction of that article . . .."

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