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condemn the cargo as contraband. The rule applied in the American cases was fully recognized by the Italian prize court, although the ship and cargo were ultimately restored to the owners on the ground that the war had come to an end before the condemnation had taken place.74

As applied in this case the doctrine met with the approval of the Institute of International Law.75

An incident which occurred during the war between China and Japan disclosed the views of the Japanese government.76 Her cruisers searched the British mail steamer Gallic in the harbor of Yokohama for persons who were carrying to China explosive material intended to be used for the destruction of Japanese ships. At the time of the search the persons alleged to be on the way to serve in the Chinese army had disembarked and proceeded on another ship to Shanghai. But the search was continued for articles which they might have left on the vessel. The Gallic was at the time on a voyage from San Francisco to Hong-Kong by way of Yokohama. It appears that vessels belonging to the same company to which the Gallic belonged frequently called at the Chinese port of Amoy but there was no proof that the Gallic intended to do so on this voyage. The Japanese government justified the search of the British ship on the probability that it might call again at Amoy and that persons or goods on board were destined for China by way of Hong-Kong. The British government objected to the proceedings because the Gallic had no hostile destination and there was

* For the decision of the Italian prize court, see Ruys v. Royal Exchange Assur. Co., 2 Com. Cas. 201, and Journal de Droit Int. Privé, pp. 850–878. Archives Diplomatique, tom. i, p. 81 (1897). See generally Brusa, L'affaire de Doelwijk, Revue Générale de Droit Int. Pub., tom. iv, p. 157 (1897); Diena, Le Judgment du Conseil des Prises d'Italie dans l'Affaire du Doelwijk, Journal du Droit Int. Priv., tom. xxiv, pp. 268, 275 (1897); Despagnet, Le Conflit entre Italie et Abyssinnia, Revue Gén. de Droit Int. et Priv., tom. iv, p. 39; Remy, Théorie de la Continuité du Voyage, p. 62; Kleen, Lois et Usages de la Neutralité, tom. ii, p. 662; Bonfils, Manuel de Droit Int. Pub. (Fauchille), $1707; Pillet, Lois Actuelles de la Guerre, $216, p. 329; Fedozzi, Revue de droit Int., tom. 29, p. 49 (1897).

75 Annuaire de l'Institute de Droit Int., tom. xv, p. 231.

70 Takahaski, the legal adviser to the Japanese admiralty, cites the case of the Hart as “an established precedent,” and remarks that, “Anyone with common sense can soon deduce that if Japan had admitted all neutral vessels to be exempt from the enforcement of belligerent rights simply because they were ostensibly going to Hong-Kong, which is in its geographical position actually a part of China, then all neutral vessels would have been exempt from capture even though they carried contraband of war.” (Int. Law During the Chino-Japanese War, p. 62.)


no evidence of any intention to call at the Chinese port of Amoy. In reviewing this incident Professor Westlake, who had been one of the critics of the Springbok decision,” used the following language:

Goods on board a ship destined for a neutral port may be under orders from the owners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship,

or by transshipment or even by land carriage. Such goods are to reach the belligerent without the intervention of a new commercial transaction. In pursuance of the intention formed with regard to them by the persons who are their owners during the voyage to the neutral port. Therefore even during that voyage they had a belligerent destination although the ship which carried them may have only a neutral one.

The doctrine as applied in the American case of the Peterhof, the French case of the Frau Howina, and the Italian case of the Doelwijk, was approved by Great Britain during the Boer War of 1899.79 Great Britain asserted the right to detain neutral vessels bound for the Portuguese port of Lorenzo Marquez when there was reason to believe that they were loaded with contraband goods destined overland to the Transvaal. The detention and search of the German ship Bundesrath led to a correspondence between the two governments, in which Lord Salisbury defended the seizure on principle and the authority of the American cases and cited Bluntschli in support of the right to capture contraband goods when being carried on a neutral ship to a neutral port with an ulterior destination beyond to a belligerent. Count Hatzfeldt countered by quoting from the British Naval Manual of Prize Law of 1866 the statement that the destination of the vessel is conclusive as to the destination of the goods on board. Lord Salisbury replied that the book was published as a convenient guide for her majesty's officers in the exercise of their duties, “but it has never been asserted, and cannot be admitted to be, an exhaustive or authoritative statement of the views of the lords commissioners.” After further explaining away the embarrassing statement in the manual, Lord Salisbury said:

77 See Revue de Droit Int., tom. vii, p. 259.

78 Takahaski, Int. Law. During the Chino-Japanese War, Intro. Note by Prof. Westlake. Reprinted in Law Quart. Rev., vol. xv, p. 3. In Professor Westlake's opinion the search of the Gallic could not be justified on the doctrines relating to contraband of war.

19 Correspondence on the Seizure of the Bundesrath, South Africa, No. 1 (1900); The seizure of the Bundesrath by J. Dundas White, Law Quar. Rev., vol. 17. lxv, p. 12; Contraband Goods and Neutral Ports, by E. L. de Hart, Law Quar. Rev., vol. 17, lxvi, p. 193 (a reply to the foregoing article); Baty, Int. Law in S. Africa, pp. 1-44; Desjardins, Rev. des Deux Mondes, March, 1900, p. 61. Int. Law Situations (Pub. Naval War College), p. 79.

The directions in this manual which for practical purposes were sufficient in the case of wars such as have been waged by Great Britain in the past, are quite inapplicable to the case which has now arisen of war with an inland state, whose only communication with the sea is over a few miles of railway to a neutral port.

Professor Holland defended this application of the doctrine of continuous transport as an innovation which seems to be demanded by the conditions of modern commerce. 80

The German government claimed that Great Britain had no right to interfere with neutral goods while on the way from one neutral port to another and that the duty of preventing the transmission of contraband to the Transvaal rested upon the Portuguese government. It should be noted, however, that the Prussian regulations of 1864 regarding naval prizes provide that the hostile destination of the goods or the destination of the vessel to an enemy's port justifies her seizure.

After the capture of the Doelwijk by the Italian government the owners abandoned the ship and attempted to recover the insurance in the English courts and it was held that they were estopped by the decision of the Italian prize court upon the questions of fact.81 But in a similar action by the owners of the Peterhof the English court refused to be bound by the facts as found by the American court and used language which has been construed as condemning the legal ground upon which the Supreme Court of the United States rested its decision.82 Dr. Phillimore says that Chief Justice Erle, who decided the case of Hobbes v. Henning, is in accord with the Supreme Court of the United States upon the general doctrine, and Prof. Westlake says that the case has been represented, I think, erroneously as repudiating the doctrine of continuous voyages.

On the whole then no positive opinion is




$0 The Times, Jan. 3, 1900. The latest edition of the Manual of Naval Prize Law prepared by Professor Holland states the rule as follows, “The ostensible destination of a vessel is sometimes a neutral port while she is in reality intended after touching and even loading and colorably delivering over her cargo there to proceed with the same cargo to an enemy's port. In such a case the voyage is held to be continuous and the destination is held to be hostile throughout."

81 Ruys v. Royal Exchange Co., 2 Com. Cas., 201; also (1890) 2 Q. B., 135. 82 Hobbes v.

Henning, 17 C. B. (n. s.) 791.

to be found in Hobbes v. Henning on the doctrine of continous voyages and the tendency of the court's observations is not unfavorable to it.83

In the subsequent case Seymour v. Insurance Company, $4 the doctrine is clearly recognized and approved.

The reasonableness of the doctrine of continuous voyages as applied to modern conditions has thus led to its general acceptance by maritime states and by writers of high authority, such as Bluntschli, Gessner, Kleen, Fiore, Calvo, Bonfils, Westlake, Oppenheim, and others. At the session at Weisbaden in 1882, the Institute of International Law condemned the decision in the case of the Springbok in unsparing terms, 85 but this representative body of jurists of all nations finally adopted the American doctrine. At the meeting in Venice in 1896 the following rule was approved:

A destination for the enemy is presumed when the carriage of the goods is directed toward one of his ports or toward a neutral port which by evident proofs arising from incontestable facts is only a stage in a carriage to the enemy as the final object of the same commercial transaction.86

This phase of the controversy may be considered as closed.

There are some serious objections to the doctrine as applied to the law of blockade. In the case of contraband the guilt attaches to the goods but in blockade running the ship is the vehicle of offense and the goods merely follow its fate. When the ship is in good faith bound to a neutral port and it is intended to there transship the goods and carry them to the blockaded ports in another vessel, the theory seems to break down and the doctrine of continuous voyages or of continuous transport can be applied only if we modify the old theory. 87

83 Phillimore, Int. Law, vol. iii, p. 397; Westlake, Law Quar. Rev., vol. xv, p. 28. 84 41 L. J. N. S. C. P. affm. in Exchequer Chamber, 42 L. J. N. S. C. P. 111 note.

85 Rev. de Droit Int., tom. xiv, p. 328 (1882). The conclusions of the committee are printed in Rivier, Principes du droit des gens, tom. 2, p. 433, in Moore, Int. Law Dig., vol. vii, p. 731.

** La destination pour l'ennemi est présumée lorsque le transport va à l'un des ses ports, ou bien à un port neutre qui d'après des preuvés évidentes et des fait incontestables n'est qu'un étape pour l'ennemi comme but final de la même opération commerciale." (Annuaire de l'Institute de Droit Int., tom. xv, p. 231.)

87 Two Centuries of American Law, p. 551, International Law, by Prof. T. S. Woolsey.

Otherwise the application of the doctrine is entirely consistent with the general principles of the law of blockade as understood and applied by Great Britain and the United States and approved by Prussia and Denmark, but inconsistent with the theory and practice of France, Italy, Spain and Sweden. The British and American practice subjects the ship to capture and condemnation from the time it sails for a port, the blockade of which has been diplomatically notified unless the port from which the vessel sails is so distant from the seat of war as to justify her master in starting with a destination known to be blockaded, on the chance of finding that the blockade has been removed and should that not prove to be the case with the intention of changing her destination.88

Under the French practice a ship has the right to proceed to the entrance of the blockaded port and there learn whether the blockade then exists. Special notice to each vessel duly endorsed on the ship's papers is necessary in addition to any public proclamation which may have been issued by the government.se

The doctrine is, of course, inapplicable to the law of blockade if this rule is to be accepted, but it is consistent with the British and American rule under which the neutral trader subjects his property to confiscation immediately upon sailing with a clear destination for a blockaded port. As the test of criminality is found in the intention, the entire proceedings from the time of sailing are open to investigation. The right to capture the ship at any time after it sails for the blockaded port presupposes the existence of a legal blockade and the necessity for this legal blockade is in nowise affected by the interposition of a neutral port for the

$$ Holland, Prize Law, $133; United States Naval Code. Art. 42; Taylor, Int. Law, p. 769; Oppenheim, Int. Law, vol. ii, p. 413; Bulmerincq, Revue de Droit Int., tom. x, p. 240; the Betsy, 1 C. Rob. 34.

** Calvo, Le Droit Int., tom. v, 32846, et seq; Pistoye & Duverdy, Traité des Prises Maritimes, tom. i, p. 370.

** Bonfils, Manuel de droit Int. public (4 ed.), $1665; De Boeck, De la Propriété Privée, $175; Geffcken, Heffter, Le droit Int. (4th ed. French), p. 379, note 9; Depuis, Le Droit de la Guerre Maritime, g194-5; Pillet, Les Lois Actuelles de la Guerre, $216.

$1 Taylor, Int. Law, p. 680. The ship cannot be admitted to even approach the blockaded port for the purpose of inquiry. The Irene, 5 C. Rob. 390. For an extreme application of this principle, see the Adula, 176 U. S. 361, and the comments of the defeated counsel thereon in report of the Universal Congress of Lawyers and Jurists, 1904, pp. 248–250.

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