merce between America and the neutral powers of Europe was virtually carried on under the license of the British and French governments.

§ 504. British and American Practice Compared. The American government was reproached by the British government for protesting against the exercise by Great Britain of a right which the United States exercised in respect to the carriage of contraband during the Civil war. Thus, in a communication to the department of state in November, 1914, the British ambassador said:

"As you are aware, the Supreme Court of the United States in 1863 considered vessels as carrying contraband, although sailing from one neutral port to another, if the goods concerned were destined to be transported by land or sea from the neutral port of landing into the enemy's territory. It then decided that the character of the goods is determined by their ultimate and not their immediate destination, and this doctrine was at the time acquiesced in by Great Britain, though her own trade was the chief sufferer." But it was pointed out in the United States that the circumstances under which the rule of continuous voyage was applied during the Civil war differed in important respects from those under which it was applied by Great Britain and France during the recent war. During the Civil war the neutral ports to which the intercepted cargoes were destined were really nothing more than ports of call or transshiyment where there existed little or no local demand for the enormous quantities of goods which were consigned thereto, and they were in addition well known as notorious bases near the coast of the Confederacy for blockade runners. Upon delivery the cargoes did not become a part of the common stock of the country, but were immediately reladen on other vessels and reforwarded to belligerent territory. As Judge Marvin said in the case of the Dolphin, Nassau furnished no market for such a cargo as that vessel contained.

"It is," he said, "a small town. The adjacent islands possess but a small population dependent upon it for supplies. Probably not three merchant steamers ever arrived at that port from any part of the world until after the present blockade was established, except the regular government mail steamers. The size of the country, the smallness of the population, and the absence of local demand, therefore, repelled the assumption that goods of the character and quantity involved in these transactions were intended for local consumption."

NEUTRAL EMBARGOES

301 In the recent war the neutral ports to which the detained cargoes were consigned were the ports not of small islands, but of countries with extensive populations among whom there was a large local demand for the particular commodities in question, a demand which was increased considerably by the cutting off of the accustomed supply at the outbreak of the war, from the neighboring belligerent States. They were not mere ports of call or transshipment. In every case the cargoes were intended to be unloaded, after which they would become mixed with the common stock of the country, a transaction which interrupted the voyage; if a subsequent shipment took place, it would be an entirely new voyage and not a continuation of the initial voyage.1

Sir Edward Grey in his first note to the American government, January 7, 1915, produced statistics to show that there had been a large increase in the volume of exports, particularly of copper, from America to the neutral countries of Europe since the outbreak of the war.2 "With such figures," he said," the presumption is very strong that the bulk of the copper consigned to these countries has recently been intended not for their own use but that of the belligerent who cannot import it directly." But there had always been a large demand for copper in these countries, and, as has been said, it was increased by the cutting off of the supply from Germany and Austria at the outbreak of the war. Neutrals therefore refused to admit the validity of the British contention that the increase of imports from America by neutral States adjacent to Germany was conclusive as to enemy destination, all the more so because those countries had placed embargoes on the reëxportation of most of the goods so imported.

Sir Edward Grey in a memorandum of April, 1916, replied

1 Cf. Secretary Lansing's note of October 21, 1915, European War, No. 3, pp. 25 ff., and Burgess, America's Relations to the War, p. 101.

Sir Edward Grey submitted among other data the following exhibit of exports from New York to certain neutral countries for the months of November, 1913 and 1914, respectively:

at length to the American contention that goods consigned to neutral ports and intended to become a part of the "common stock" were not liable to seizure under the doctrine of ultimate destination. The statistics which he quoted concerning the vast increase of imports and other evidence repelled the presumption, he said, that these goods were intended to become a part of the common stock of the country.

"However sound the principle that goods intended for incorporation in the common stock of a neutral country should not be treated as contraband may be in theory," he said "it is one that can have but little application to the present imports of the Scandinavian countries. The circumstances of a large number of these shipments negative any conclusion that they are bona fide shipments for the importing countries. Many of them are made to persons who are apparently nominees of enemy agents, and who never figured before as importers of such articles. Consignments of meat products are addressed to lightermen and dock labourers. Several thousands of tons of such goods have been found documented for a neutral port and addressed to firms which do not exist there. Large consignments of similar goods were addressed to a baker, to the keeper of a small private hotel, or to a maker of musical instruments. Will it be contended that such imports ought to be regarded as bona fide shipments intended to become part of the common stock of the country? To press any such theory is tantamount to asking that all trade between neutral ports shall be free, and would thus render nugatory the exercise of sea power and destroy the pressure which the command of the sea enables the allies to impose upon their enemy."

" 1

505. Defence of the Doctrine of Continuous Voyage under Modern Conditions. It must be admitted that the circumstances under which the early doctrines relative to the seizure of contraband were applied, were radically different from those which exist today. At that time the lack of facilities for land transportation made it difficult for a belligerent to obtain over-seas supplies through the ports of neighboring neutral States. The question of ulterior enemy destination was therefore of relatively small importance. Under those circumstances Sir William Scott could say, as he did in the case of the Immina, that goods going to a neutral port "cannot be regarded as con

1 In a statement presented to the House of Commons in January, 1916, entitled: Measures Adopted to Intercept the Sea-borne Commerce of Germany (Misc., No. 2, Cd. 8145), the British government contrasted the conditions in earlier wars, under which the old rule was practicable, with those of the recent war, when without the application of the doctrine of continuous voyage it would have been impossible to prevent illicit trade with Germany.

CONTINUOUS VOYAGE DEFENDED

303 traband, but that they must be taken in delicto in the actual prosecution of a voyage to an enemy port." On this principle he was justified in refusing to condemn a cargo of cheese destined to Quimper on the opposite side of the peninsula from Brest, a port of naval equipment, because on account of the lack of land transportation facilities between the two places it was impossible to say that the ultimate destination of the cargo was the latter port. But he was entirely justified in condemning, as he did the following day, a cargo destined to the port of Coruña, because it was situated in close proximity to the naval port of Ferrol to which the goods could be carried on in the same ship.2 In other words, he applied the doctrine of continuous voyage whenever the means of transportation between the intermediate neutral port and the belligerent port were such that the goods could be easily reforwarded and transshipped to the enemy.3 The old English rule, according to which the destination of the ship was primarily the test, was effective enough under the conditions of land transit then existing; but with the development of railway and other facilities for land transportation, which made it as easy for a belligerent to obtain over-sea supplies by land through the medium of adjacent neutral ports as through his own ports, the old rule no longer sufficed. Unless, therefore, a belligerent were allowed to apply the doctrine of ultimate destination to the carriage of contraband to such neutral ports, his power to intercept contraband would be of little avail in a war with a continental enemy. Accordingly, the prize courts of France, the United States, and Italy extended the old rule so as to make it conform to the altered conditions.*

§ 506. Cases of the Kim and Others. Naturally a large number of cases involving questions of contraband came before the prize courts of the various belligerents during the recent war. It is impossible to examine any considerable number of them here; it must suffice, therefore, to refer only to a few of the more important cases decided by the British, French, and German prize courts.

1 The Frau Margaretha, 6 C. Rob. 92 (1805).

The Zelden Rust, 6 C. Rob. 93 (1805).

Compare Pyke, The Law of Contraband of War, pp. 144, 156.

• Compare Perrinjaquet in 22 Rev. Gén. de Droit Int. Pub., p. 129. See also two articles entitled Contrebande de Guerre dans le Conflit Actuelle in 42 Clunet, pp. 453 ff. and 831 ff.

A series of cases which attracted widespread attention by reason of the great value of the cargoes seized, and which are important because they involved the question of the applicability of the doctrine of continuous voyage, were those of the Kim, the Alfred Nobel, the Björnstjerne Björnson, and the Fridland, all Norwegian and Swedish steamers laden with large cargoes of lard, meat, and other food products, wheat, oil, and rubber, the aggregate value of which was estimated at about $15,000,000, destined to Copenhagen and consigned "to order." They all sailed from New York in October, 1914, and were captured during the following month by British cruisers and taken in on the ground that their cargoes were conditional contraband destined ultimately for the government or armed forces of Germany.

After a long delay the cases were brought to trial before the British prize court in July, 1915. The owners, five American meat packing concerns, contended that since the goods were conditional contraband, it must be shown that they were intended for the government or armed forces of Germany, and that this intent existed from the first; also that the onus of proving the intent rested upon the crown. They contended, furthermore, that the doctrine of continuous voyage could not be applied, because this doctrine was applicable only where the destination was that to which the original consignor intended the goods to be sent, and in these cases that destination was a neutral port. To hold, as the crown insisted, that because the whole German nation was under arms, provisions going to Germany might be treated as if they were destined for the use of the government or the armed forces, would be to disregard the time-honored distinction between absolute and conditional contraband. The claim of the crown that in view of the practice of the German government of making requisitions upon merchants for food supplies, in consequence of which any goods going to Germany might be taken for the use of the military forces, the British government would be justified in treating them as absolute contraband, was denied. The mere fact that they were destined to enemy territory and might ultimately find their way to the armed forces did not render them confiscable. Adverting again to the doctrine of continuous voyage, the claimants argued that the test of a continuous