DOCTRINE OF CONTINUOUS VOYAGE

295 cargo found aboard the Swedish steamship Urra, bound from New York to Gothenburg and Copenhagen in January, 1915, were goods described in the bill of lading as fifteen cases of hammers sent from the United States to Danish forwarding agents. They were found on examination to consist of fifteen cases, each containing a bag of copper, brass, and apparently aluminum filings and turnings. In the cargo of the Norwegian steamer Lyngenfjord, which sailed from New York on April 4, 1916, were found 250 sacks of what appeared to be coffee, but which turned out to be rubber.

It would seem, however, that the necessity of detention (which sometimes proves ruinous to shippers) resulting from concealment and fraudulent manifests might be removed by some system of official certification whereby neutral vessels could carry, if they chose, satisfactory assurances that their cargoes consisted only of the goods described in their papers. In some cases such certificates were in fact issued by the United States' custom officials under authority of the treasury department and in other cases by British consuls under whose supervision the vessels were loaded, but the British government declined to regard such certificates as conclusive on the ground that they afforded no assurance against subsequent augmentation of the cargo at sea. In several cases cargoes so certified were seized and taken into port for examination.

In 1916 an arrangement was made by which "letters of assurance" were granted by the British embassy at Washington to exporters of cargoes which upon inspection were found to be unobjectionable. The presence of such a letter on board the ship assured it against interference on the part of British cruisers upon arrival in the zone of blockade.

§ 501. Extension of the Doctrine of Continuous Voyage to the Carriage of Conditional Contraband. Another subject of complaint by the American government was the extension by the British government of the rule of continuous voyage to the "letter rather than the spirit of our rights." Cf. also Allin in the Minnesota Law Review, April, 1917, pp. 19 ff.

1 Suggestions have frequently been made that this expedient should be adopted, and the proposed code adopted by the American Institute of International Law at its Havana session in 1917 contained a provision that certificates of this kind should be furnished merchant vessels and that those carrying them should be exempt from search.

carriage of conditional contraband and the introduction of "new principles which create presumptions of guilt not recognized either by the Declaration of London or the existing usage of nations." Article 35 of the Declaration lays down the rule that conditional contraband is not liable to capture, except when found on board a vessel bound for an enemy port and for the use of the armed forces of the enemy, and when it is not to be discharged in an intervening port.1 The British order in council of October 29, however, proclaimed that notwithstanding the provisions of article 35, vessels bound for neutral ports, if the goods were consigned "to order," or if the ship's papers did not show who was the consignee, or if they showed a consignee in territory belonging to or occupied by the enemy, should be liable to capture, and that in such cases the onus of proving an innocent destination should be upon the owners of the goods. The effect of this order in council was to extend the application of the rule of continuous voyage to the carriage of conditional contraband to neutral ports unless the consignment was to a specifically named person, and to reverse the established rule, which placed upon the captor, not upon the owner, the burden of proving a hostile destination. The order in council, however, recognized the distinction between absolute and conditional contraband. But by an order in council of March 30, 1916, the distinction, as stated above, was declared to have ceased to have any real foundation in view of the German government's having taken over the control of many articles which were not munitions of war, so that such articles consigned to enemy territory had the same status as if they were consigned directly to the government or its armed forces. The order, therefore, announced that the doctrine of continuous voyage would be applied to all contraband whether absolute or conditional and whether consigned to order or to specifically named persons.

In July, 1916, following the decision of the British and French

1 The intention of article 35 as shown by the general report of the committee was to prohibit the application of the doctrine of continuous voyage to the carriage of conditional contraband. Cf. Stockton, "The International Naval Conference of London, 1908–1909,” Amer. Jour. of Int. Law, Vol. III, p. 608.

2 This latter rule had formerly been vigorously maintained by Great Britain, notably during the Russo-Japanese war. Cf. Bentwich, The Declaration of London,

FORMER PRACTICE

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governments to abandon in toto the Declaration of London and to exercise their belligerent rights at sea in accordance with "the existing law of nations," a new order in council was issued laying down the rule that the doctrine of continuous voyage or ultimate destination should henceforth be applicable both to the carriage of contraband and blockade.

§ 502. History of the Doctrine of Continuous Voyage. To enable belligerents to meet effectively the situation caused by the proximity of neutral ports to enemy territory, the doctrine of continuous voyage was developed and applied to the carriage of contraband to such ports when it was evident that the ultimate destination was enemy territory. It appears to have been first applied to the carriage of contraband by the French courts during the Crimean war in the case of the Frau Anna Howina, when a cargo of saltpetre bound from Lisbon to Hamburg was condemned on the ground that the real destination was an enemy port in Russia.1

2

As is well known, the doctrine was applied by the United States courts to the carriage of contraband, notably in the cases of the Dolphin, the Pearl, the Bermuda, the Stephen Hart, the Circassian, the Springbok, and others; it was applied during the Boer war by the British government which had acquiesced in the American practice during the Civil war, but which, it is well known, did not recognize its validity; it was 1 Calvo, Le Droit Int., Vol. V, secs. 1961, 2767.

4

* For an analysis of and comment on these cases cf. Elliott, "The Doctrine of Continuous Voyages," Amer. Jour. of Int. Law, Vol. I, pp. 61 ff., and Woolsey, "Early Cases on the Doctrine of Continuous Voyages," ibid., Vol. IV, pp. 823 ff.

Baty, Int. Law in South Africa, pp. 1-44; White, Law Qu. Review, Vol. 17,

p. 12; Hart, art. cited, p. 193, and Elliott, art. cited, p. 100.

♦ Sir Edward Grey, however, speaking of the continental opposition to American practice during the Civil war, stated in his note of July 23, 1915, to the American government that "the United States and the British government took a broader view and looked below the surface at the underlying purpose." Baty (Britain and Sea Law, p. 72) remarks that the British government did not "strenuously object" to the novel doctrine enunciated in the Springbok and other cases, because it "hoped to find it useful and it proved to be so in the South African war." The theory of continuous voyage as enunciated and applied by the Supreme Court in the case of the Springbok was criticised by the Institute of International Law in 1882 as "subversive of an established rule of the law of maritime warfare according to which neutral property on board a vessel under a neutral flag, while on its way to a another neutral port, is not liable to capture or confiscation." Revue de Droit Int., Vol. XIV, pp. 329–331. This fairly represented the opinions of continental and English publicists. But at its session of 1896 the Institute reversed itself and approved the Springbok doctrine. Annuaire, Vol. XV, p. 231.

also applied by the Italian government during its war with Abyssinia in 1896.1 Great Britain until recently had uniformly opposed the doctrine of ultimate destination, and in 1885, when the French government announced its intention of seizing neutral vessels carrying contraband goods to the English port of Hong Kong, on the ground that their ultimate destination was the armed forces of China, the English government protested vigorously and asserted the right of neutral vessels to trade freely between neutral ports. During the Boer war, however, as has been said, Great Britain undertook to apply the rule which she had formerly condemned. Three German ships, the Bundesrath, the Herzog, and the General, bound for the neutral port of Lorenzo Marquez in Delagoa bay, were seized on the ground that portions of their cargoes consisted of contraband the ultimate destination of which was the Boer armies. The ships were released on account of the vigorous protest of the German government. Several vessels laden with cargoes of American flour bound to Portuguese ports in Delagoa bay were also seized by British cruisers during the same war. There was a strong protest in the United States, and the American government declared that it could not recognize the validity of "any right of capture by a belligerent of provisions and other goods shipped by American citizens in the ordinary course of commerce and destined to a neutral port." But it turned out that the ships were English and not neutral vessels, and were seized for transporting goods to enemy territory in violation of a municipal statute. The seizure of the cargoes was declared to be incidental to the seizure of the ships, and the British government agreed to liberate or purchase them. The controversy was not, therefore, one involving the question of contraband.3

1 Notably in the Doelwick case which was identical with the case of the Peterhof. The Doelwick was a Dutch ship captured by an Italian cruiser while bound for the French-African port of Djibouta. But although the ship and cargo were condemned by the prize court, they were restored, the war having ended before the prize was condemned. Brusa, Rev. Gén. de Droit Int. Pub., Vol. IV, p. 157; Clunet, Vol. XXIV, pp. 268, 275; Bonfils, sec. 1707, and Pillet, Les Lois Actuelles, sec. 269. As thus applied by the Italian prize court it met the approval of the Institute of International Law. Annuaire, Vol. XV, p. 231.

2 Cf. an article by Geffcken entitled La France en Chine et le Droit International, in the Rev. de Droit Int. et de Lég. Comp., Vol. 17, p. 149 (1885).

8 J. B. Moore, La Contrebande de Guerre, Revue de Droit Int. et de Lég. Comp., Vol. 44, p. 239. The whole subject of these seizures is examined at length in Campbell's Neutral Rights and Obligations in the Anglo-Boer War, ch. III.

NEUTRAL EMBARGOES

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It was to meet such a situation as that presented by the Delagoa bay cases that the Declaration of London allows the rule of continuous voyage to be applied to the carriage of conditional contraband (as well as absolute contraband) when the enemy has no seaboard. When the recent war broke out, this doctrine was generally accepted by all maritime States. Both Germany and Austria, however, had seaports, and hence the rule of continuous voyage could not, if the Declaration had been observed, have been applied to the carriage of American cargoes of conditional contraband to neutral ports in Europe. But this feature of the Declaration was not acceptable to Great Britain, and it was modified by the orders in council of October 29 and March 30, 1916, and finally the entire Declaration was abrogated in July, 1916, after which she applied the rule which the British prize courts had always repudiated, and which British authorities without exception had condemned.1

§ 503. Neutral Embargoes on Exportations to Belligerent Territory. The British and French governments went farther and employed their power over neutral commerce to compel such neutral countries as Italy, the Netherlands, Norway, Sweden, and Denmark to place an embargo upon the exportation to enemy territory of many articles of both absolute and conditional contraband.2 Confronted by the prospect of seeing their over-seas trade reduced to insignificant proportions, one after another of them were induced to prohibit the exportation or transportation through their territories of such goods as the British and French governments chose to regard as contraband, and which therefore they would not permit to be delivered from abroad without a pledge that they should not be allowed to go to Germany or Austria. The result was, com

1 As to the views of the British authorities cf., e.g., Westlake, Vol. II, p. 253; Atherley-Jones op. cit., p. 257; Baty, Int. Law in South Africa, pp. 6, 19; Bentwich, The Declaration of London, pp. 18, 75, and Hall, op. cit., p. 673. This view was also affirmed by the British government in its instructions to its delegates to the London Naval Conference in 1908. House of Coms. Ses. Papers, Misc., No. 5 (1909), p. 95.

2 Some of these embargo lists may be found in International Law Situations for 1915, pp. 33 ff. On the Danish list are some two hundred and fifty items, including such articles as drugs, bicycles, vegetables, and other food products, chemicals, oils, ores, grain, cloth, fertilizers, gasoline, lubricants, lumber, machinery, potash, rags, rubber, rosin, seeds, skins, steel, wool, etc. The Dutch list contains some 200 articles, that of Norway 250, that of Switzerland about 200, and those of Portugal, Roumania, Spain, and Sweden about 500 each.