and even landing and colourably delivering over her cargo there, to proceed with the same cargo to an enemy port. In such a case the voyage is held to be 'continuous,' and the destination is held to be hostile throughout." And provided that the intention of the vessel is really to carry the cargo circuitously, by a roundabout way, to an enemy port, and provided, further, that a mere suspicion is not held for a proof of such intention, I cannot see why this application of the doctrine of continuous voyages should not be considered reasonable, just, and adequate. of Con tinuous § 401. It also happens in war that neutral vessels Indirect carry to neutral ports such articles as are contraband Carriage if bound for a hostile destination, the vessel being traband (Doctrine cognisant or not of the fact that arrangements have of Conbeen made for the articles to be afterwards brought Transby land or sea into the hands of the enemy. And ports). the question has arisen whether such vessels on their voyage to the neutral port can be considered carrying contraband of war. Already in 1855, during the Crimean War, the French Conseil-Général des Prises, in condemning the cargo of saltpetre of the Hanoverian neutral vessel "Vrow Houwina," answered the question in the affirmative; 2 but it was not until the The question is treated with special regard to the case of the "Bundesrath," in two able articles in the Law Quarterly Review, XVII. (1901), under the titles "The Seizure of the Bundesrath" (Mr. I. Dundas White) and "Contraband Goods and Neutral Ports" (Mr. E. L. de Hart). See also Baty, International Law in South Africa (1900), pp. 1-44. 2 See Calvo, V. § 2767, p. 52. The case of the Swedish neutral vessel 66 Commercen," which occurred in 1814, and which is frequently quoted with that of the "Vrow Houwina" (1 Wheaton, The Case of the American Civil War that the question was decided on principle. Since from the British port of Nassau, in the Bahamas, and from other neutral ports near the coast of the Confederate States, goods, first brought to these nearer neutral ports by vessels coming from more distant neutral ports, were carried to the blockaded coasts of the Southern States, Federal cruisers seized several vessels destined and actually on their voyage to Nassau and other neutral ports because all or parts of their cargoes were ultimately destined for the enemy. And the American Courts considered those vessels as carrying contraband, although they were sailing from one neutral port to another, on clear proof that the goods concerned were destined to be transported by land or sea from the neutral port of landing into the enemy territory. The leading cases are those of the Springbok" and "Peterhoff," which are already mentioned above in § 385 (4), for the Courts found the seizure of these and other vessels justified as well on the ground of carriage of contraband as on the ground of breach of blockade. Thus, another application of the doctrine of continuous voyages came into existence, since vessels whilst sailing between two neutral ports could only be considered to be carrying contraband when the transport first from one neutral port to another and afterwards from the latter to the enemy territory had been regarded as one continuous voyage. This application of the doctrine of continuous voyages is fitly termed "doctrine of continuous transports." 66 § 402. This application of the doctrine of con"Bundes- tinuous voyages under the new form of continuous rath." way to a neutral port, and he tion of goods was sufficient to justify the seizure of the vessel. transports has likewise been condemned by many British and foreign authorities; but here, too, Great Britain did not protest-on the contrary, she has, as was mentioned above in § 385 (4), declined to interfere in favour of the British owners of the vessels and cargoes concerned. And that she really considers the practice of the American Courts just and sound became clearly apparent by her attitude during the South African War. When, in 1900, the "Bundesrath," "Herzog," and "General," German vessels sailing from German neutral ports to the Portuguese neutral port of Lorenzo Marques, in Delagoa Bay, were seized by British cruisers under the suspicion of carrying contraband, Germany demanded their release, maintaining that no carriage of contraband could be said to take place by vessels sailing from one neutral port to another. But Great Britain refused to admit this principle, maintaining that articles ultimately destined for the enemy were contraband, although the vessels carrying them were bound for a neutral port.1 There is no doubt that this attitude of the British Government was contrary to the opinion of prominent English 2 writers on International Law. Even the "Manual of Naval Prize Law," edited by Professor Holland 3 in 1888, and "issued by authority of the Lords Commissioners of the Admiralty," reprobates the American practice, for in § 72 it lays down the following rule: ". . . If the destination of the vessel 1 See Parliamentary Papers, Africa, No. 1 (1900); Correspondence respecting the action of H.M.'s naval authorities with regard to certain foreign vessels. 2 See, for instance, Hall, § 247, and Twiss in the Law Magazine and Review, XII. (1877), pp. 130-158. 3 In a letter to the "Times" of January 3, 1900, Professor Holland points out that circumstances had so altered since 1888 that the attitude of the British Government in the case of the "Bundesrath" was quite justified. Conti nental support to the Doctrine of Continuous Transports. 1 be neutral, then the destination of the goods on board should be considered neutral, notwithstanding it may appear from the papers or otherwise that the goods themselves have an ulterior destination by transhipment, overland conveyance, or otherwise." And the practice of British Prize Courts seems hitherto to have been in accordance with this rule. In 1798, during war between England and the Netherlands, the neutral ship "Imina," which had left the neutral port of Dantzig for Amsterdam carrying ship's timber, but on hearing of the blockade of Amsterdam by the British had changed her course for the neutral port of Emden, was seized on her voyage to Emden by a British cruiser, but she was released by Sir William Scott because she had no intention of breaking blockade, and because a vessel could only be considered carrying contraband whilst on a voyage to an enemy port. "The rule respecting contraband, as I have have always understood it, is that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy port," said Sir William Scott.2 § 403. Although the majority of Continental writers condemn the doctrine of continuous transports, there are several eminent Continental authorities who support it. Thus, Gessner (p. 119) asserts emphatically that the destination of the carrying vessel is of no importance compared with the destination of the carried goods themselves. Bluntschli, although he condemns in § 835 the American practice regarding breach of blockade committed by a vessel sailing from one neutral port to another, approves in § 813 expressly of the American practice regarding carriage of contraband by a vessel sailing between two neutral ports, yet carrying goods with a hostile destination. Kleen (I. § 95, p. 388) condemns the rule that the neutral destination of the vessel makes the goods appear likewise neutral, and defends seizure in the case of a hostile destination of the goods on a vessel sailing between two neutral ports; he expressly states that such goods are contraband from the moment the carrying vessel leaves the port of loading. Fiore (III. No. 1649) reprobates the theory of continuous voyages as applied by British and American Courts, but he asserts nevertheless that the hostile destination of certain goods carried by a vessel sailing to a neutral port justifies the vessel being regarded as carrying contraband and the seizure thereof. Bonfils (No. 1569) takes up the same standpoint as Bluntschli, admitting the application of the theory of continuous voyages to carriage of contraband, but reprobating its application to breach of blockade. And the Institute of International Law adopted the rule: "La destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports, ou bien à un port neutre qui, d'après des preuves évidentes et de fait incontestable, n'est qu'une étape pour l'ennemi, comme but final de la même opération commerciale.' Thus this representative body of authorities of all nations has fully See § 1 of the "Réglementation de guerre," Annuaire, XV. (1896) internationale de la contrebande p. 230. |