Goods on board neutral civilian aircraft outside neutral airspace are subject to capture as prize in any one of the following cases:
(a) They constitute contraband.
(b) The neutral civilian aircraft is engaged in activities rendering it a military objective under Rule 174.
Rule 141 reaffirms the traditional principle “free ship − free goods” (which is also applicable to aircraft) from which one can deduce that cargos on board neutral civilian aircraft are exempt from capture as prize. However, there are two exceptions to this principle. These two exceptions are listed in Rule 141 (a) and in Rule 141 (b).
- Para. 2 and Para. 3 of the 1856 Paris Declaration: “(2) The neutral flag covers enemy’s goods, with the exception of contraband of war. (3) Neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.”
- Para. 154 of the SRM/ACS: “Goods on board neutral civil aircraft are subject to capture only if they are contraband.”
- When the goods on board a neutral civilian aircraft constitute contraband, they may be captured as prize. This is the legal position, notwithstanding the fact that the aircraft — being neutral — must be released after inspection.
- Traditionally, if contraband goods on board a vessel (and, presumably, also an aircraft) form more than half the cargo, the neutral vessel (and aircraft) may itself be captured as prize.
- Art. 40 of the 1909 London Declaration: “A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo.”
- According to Section E and Rule 174, a neutral civilian aircraft becomes a military objective and thus liable to attack, if it engages in activities making an effective contribution to the enemy’s military action.
- In such cases, the cargo shares the legal status of the aircraft. If the aircraft is not attacked but merely captured (see Rule 140), its cargo may be captured as well, and this irrespective of its standing as contra-band.