whether the fact that the vessel is destined for an enemy port becomes apparent because her papers show that she is bound to such a port, or because she is found at sea sailing on a course for an enemy port, although her papers show her to be bound to a neutral port. Further, it makes no difference, according to the hitherto prevailing practice of Great Britain and the United States of America at any rate, that she is ultimately bound for a neutral port, and that the articles concerned are, according to her papers, destined for a neutral port, if only she is to call at an intermediate enemy port, or if she is to meet enemy naval forces at sea in the course of her voyage to the neutral port of destination; 1 for otherwise the door would be open to deceit, and it would always be pretended that goods which a vessel was really carrying to the intermediate enemy places were intended for the neutral port of ultimate destination. For the same reason, a vessel carrying such articles as are contraband when they have a hostile destination is considered to be carrying contraband if her papers show that her destination is dependent upon contingencies under which she may have to call at an enemy port, unless she proves that she has abandoned the intention of calling there in any event.2 The unratified Declaration of London distinguished between carriage of absolute and of conditional contraband: As regards absolute contraband, a vessel was, according to Article 32, considered to be carrying contraband whether the fact that she was destined for an enemy port became evident because her papers showed that she was bound for such a port, or because she was 1 See Holland, Prize Law, § 69. 2 The Imina, (1800) 3 C. Rob. 167; and The Trende Sostre, (1800) cited in The Lisette, (1806) 6 C. Rob. 390, n. See also Holland, Prize Law $ 70. Circuitous of Contra found at sea sailing for an enemy port, although her papers showed her to be bound for a neutral port. Moreover, according to Article 31, it was to make no difference that the vessel was bound for a neutral port and that the articles concerned were, according to her papers, destined for a neutral port, if only she was to touch at an intermediate enemy port, or was to meet armed forces of the enemy before reaching the neutral port to which the goods in question were consigned. As regards conditional contraband, a vessel was, according to Article 35, to be considered as carrying contraband if her papers showed her to be destined for an enemy port, or, if being clearly found out of her course to a neutral port indicated by her papers, she was unable to give adequate reasons to justify such deviation. Articles 32 and 35 both stipulated that ship-papers were to be conclusive proof as to the destination of the vessel and of the cargo, unless the vessel was clearly found out of the course indicated by them; but the Report of the Drafting Committee emphasised that this rule must not be interpreted too literally, since otherwise fraud would be made easy. Ship-papers are conclusive proof-so ran the Report-unless facts show their evidence to be false. From the outbreak of the World War until July 1916, the Allies adopted Articles 32 and 35 as regards direct carriage of contraband, though they modified Article 35 in other important respects.1 By the Maritime Rights Order in Council of July 7, 1916, they abandoned the rules of the declaration altogether. § 400. A more usual case of carriage of contraband Carriage occurs when a neutral vessel carrying such articles as band. are contraband if they have a hostile destination is, according to her papers, ostensibly bound for a neutral 1 See below, § 403a. port, but is intended, after having called there, and perhaps delivered her cargo there, to carry it on (reshipping it if need be) from there to an enemy port. There is, of course, no doubt that such vessels are carrying contraband whilst engaged in carrying the articles concerned from the neutral to the enemy port. But, during the American Civil War, the question arose whether they may already be considered to be carrying contraband when they are on their way from the port of starting to the neutral port from which they are afterwards to carry the cargo to an enemy port, since they are really intended to carry the cargo from the port of starting to an enemy port, although not directly, but circuitously, by a roundabout way. The American Prize Courts answered the question in the affirmative by applying to the carriage of contraband the principle of dolus non purgatur circuitu, and the so-called doctrine of continuous voyages.1 This attitude of the American Prize Courts has called forth protests from 1 The so-called doctrine of continuous voyages dates from the time of the Anglo-French wars at the end of the eighteenth century, and is connected with the application of the so-called rule of 1756. (See above, § 289.) Neutral vessels engaged in French and Spanish colonial trade, which had been thrown open to them during the war, sought to evade seizure by British cruisers and condemnation by British Prize Courts according to the rule of 1756, by taking their cargo to a neutral port, landing it and paying import duties there, and then re-loading it and carrying it to the mother country of the respective colony. Thus in The William, (1806) 5 C. Rob. 385, it was proved that this neutral vessel took a cargo from the Spanish port of La Guira to the port of Marblehead in Massachusetts-the United States being neutral-landed the cargo, paid import duties there, then re-shipped the greater part of it, and, in addition, other goods, and sailed after a week for the Spanish port of Indirect of Con (Doctrine of Continuous Transports). many authorities,1 British as well as foreign; but Great Britain did not protest, and from the attitude of the British Government in the case of The Bundesrath and other vessels in 1900 during the South African War, it was possible to conclude, although only by inference, that it considered the practice of the American Prize Courts to be correct and just, and that, when a belligerent, it intended to apply the same principles.2 And in the last edition of this treatise I stated that, provided that the intention of the vessel was really to carry the cargo circuitously, by a roundabout way, to an enemy port, and further, provided that a mere suspicion was not held to be proof of such intention, I could not see why this application of the doctrine of continuous voyages should not be considered reasonable, just, and adequate. § 401. Before turning to the practice during the Carriage World War, it will be convenient to consider a similar traband case which occurs when neutral vessels carry to neutral ports such articles as are contraband if bound for a hostile destination, arrangements having been made (of which the vessel may or may not be aware) for the articles to be brought afterwards by land or sea into the hands of the enemy. Long before the World War the question had arisen whether such vessels while on their voyage to the neutral port might be considered to be carrying contraband of war. As early 1 See, for instance, Hall, § 247. But Phillimore, iii. § 227, p. 391, says of the judgments of the Supreme Court of the United States in the cases of The Bermuda, (1865) 3 Wall. 514, and The Peterhoff, (1866) 5 Wall. 49, that they 'contain very valuable and sound expositions of the law, professedly, and for the most part really, in harmony with the earlier decisions of English Prize Courts.' On the other hand, Phillimore, iii. $ 398, p. 490, disagrees with the American courts regarding the application of the doctrine of continuous voyages to breach of blockade, and reprobates the decision in the case of The Springbok, (1866) 5 Wall. 1. 2 See also Holland, Manual of Naval Prize Law, § 71. 3 The question is treated with special regard to the case of The Bundesrath, in two able articles in the Law Quarterly Review, xvii. (1901). See also Baty, International Law in South Africa (1900), pp. 1-44. as 1855, during the Crimean War, the French ConseilGénéral des Prises, in condemning the cargo of saltpetre of the Hanoverian neutral vessel Vrow Houwina, answered the question in the affirmative; 1 but it was not until the American Civil War that the question was decided on principle. Since goods first brought from more distant neutral ports were shipped from the British port of Nassau, in the Bahamas, and from other neighbouring neutral ports, to the blockaded coasts of the Southern States near by, Federal cruisers seized several vessels destined for, and actually on their voyage to, Nassau and other neutral ports, because all or parts of their cargoes were ultimately destined for the enemy. The American courts considered those vessels to be 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 The Peterhoff, for the courts found the seizure of these and other vessels justified on the ground of carriage of contraband as well 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 second neutral 1 See Calvo, v. § 2767, p. 52. The case of the Swedish neutral vessel The Commercen, which occurred in 1814 (1 Wheaton 382), and which is frequently quoted with that of The Vrow Houwina, is not a case of indirect carriage of contraband. The Commercen was on her way to Bilbao, in Spain, carrying a cargo of provisions for the English army in Spain, and she was captured by a privateer commissioned by the United States of America, which was then at war with England. When the case came before Mr. Justice Story in 1816, he reprobated the argument that the seizure was not justified because a vessel could not be considered to be carrying contraband when on her way to a neutral port, and he asserted that the hostile destination of goods was sufficient to justify the seizure of the vessel, Above, § 385 (4). |