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apply no matter how many changes the goods might be subjected to or how many successive neutral ports they might pass through. But international law repudiates such fictions. International law being eminently law ba on common sense, the fiction in the present case imposes on neutral commerce burdens irrationally onerous. It gives to belligerent cruisers power over a neutral port, greater and more arbitrary than they possessed in respect to belligerent ports since while neutrals can carry to non-blockaded ports objects contraband of war they cannot without risk of seizure carry the same objects to another neutral port.


In some instances the criticism has been intemperate and unreasonable and based upon inadequate knowledge of the facts. Kleen states that the doctrine of the British prize courts was revived by the United States during the war of rebellion,

par des commandments ignorants et des juges qui entrainés par le chauvinisme de ce conflit acharné, refusaient aux Sudistes le droit des belligérent; et cela, en dépit de la désaprobation tant du governement de Washington que des principales autorités scinetifiques américaines. 69


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Remy (Théorie de la Continuité du Voyage, etc.) states that the case of the Springbok was decided by the Supreme Court of New York. Fiore is also a trifle vague as to the identity of the court. (Nouveau Droit Int. Pub. (Antoine), tom. iii, $$1648, 1649.)

6. Kleen, Lois et Usages de la Neutralité, tom. i, p. 638 (1898). If there is any justification for this disparaging reference to the Supreme Court of the United States it must be found in the letter which it was claimed was written by Mr. Justice Nelson to William Beach Lawrence, in which the justice is said to have stated "that the Supreme Court was not familiar with the law of blockade at the time when the appeal in the case of the Springbok came before it, and that the minds of several of the judges were warped by patriotic sentiments and by resentment against England.” The letter is printed in Law Mag. and Rev., 4 ser., vol. iii, p. 31, and has been referred to by all who were dissatisfied with the decisions. See also North Am. Rev., July-Aug., 1878, article by Wm. Beach on International Obligations. There is nothing remarkable possibly in the fact that a dissenting judge should feel that the majority of the court were ignorant of the principles of the law which they announced. Mr. Justice Nelson dissented in the case of the Circassian upon the ground that the blockade of New Orleans had been raised before the vessel was captured. He did not agree with the majority of the court as to what constituted a blockade, but he concurred with the other justices in all the decisions of the Supreme Court which announced and applied the doctrine of continuous voyages and continuous transport. It has been frequently assumed that he dissented from the opinion in the case of the Springbok. There were no dissenting opinions in any of the cases except as stated in the case of the Circassian.

As said by Judge Baldwin, in his inaugural address as President of the International Law Association, perhaps this particular criticism is sufficiently answered by similar ulings which have been made by the prize courts of France and Italy.


It is also remarkable that nearly all the critics persist in asserting that the American courts held that a mere suspicion of an intention to proceed ultimately to a belligerent destination justified the condemnation of the cargo or of the ship and the cargo.70 No such rule is found in any of the decisions. It was held that the suspicion justified the detention and search of the ship and that the intention to carry the cargo to the belligerent must be proven like any other fact by competent and relevant evidence. The fact that the critic is of the opinion that the evidence was not sufficient to justify the conclusion at which the court arrived has little if any bearing upon the question of the correctness of the rules of law involved in the case. Nor was it held that the intention alone was a violation of law; the condemnation resulted from proof of a specific act done with an illegal intention. There was nothing novel in the rule. It had been enforced by Lord Stowell, approved by Judge Story, by the United States during the war with Mexico, and by the prize courts of France during the Crimean War. It is true that the principle was applied under new conditions, but an "innovation" of this character is familiar and does not strike English and American statesmen and jurists as a novelty. As said by Lord Stowell in the Atalanta :71

All law is resolved into general principles, the cases which may arise under new combinations of circumstances leading to an extended application of principles, ancient and recognized, by just corollaries may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken the practice is not new nor is it justly chargeable as an innovation on the ancient law when in fact the court does nothing more than apply old principles to new circumstances.

The British prize courts condemned ships which had been captured while on the run from the neutral port to the belligerent port;" the

10 "Ludicrous," "absurd” and “attenuated,” used adjectively seem to be the favorite argument. See “Recrudescence of Belligerent Rights.” Proceedings Int Law Assoc., 1905, p. 129.

11 The Atalanta, 6 C. Rob. 440, 458 (1808).

72 In the cases of the Susan and the Hope (the Caroline, 6 C. Rob., 641 note) neutral American vessels were condemned by Sir Wm. Scott for carrying on voyages from Bordeaux official dispatches destined to French authorities in the West Indies. In neither case does it appear to have been alleged that the apparent destination of the vessel was not her true and final destination, or that she was especially employed by the French government. Nevertheless it was held that the transportation of the dispatches toward their belligerent destination was an unneutral and a prohibited service. (Noted in Moore, Int. Law Dig., vol. vii, p. 727.)

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American courts condemned ships which had been captured while on the run from neutral port to the intermediate neutral port; with the intention to proceed to a belligerent port. Unless it is arbitrarily assumed that the ship is free from capture until it has left the intermediate neutral port because of the fact that its papers are regular in form, it is difficult to see that there is any difference in principle. If the voyage was illegal the noxious quality was imparted by the intention which was entertained at the time of the departure from the initial neutral port. When the capture was made after the ship or cargo had left the port of simulated destination the evidence of the original intention was furnished by what had been done at the intermediary port. If the goods had been incorporated into the common stock of the neutral country it was thus conclusively shown that any illegal intention which may have been entertained had been abandoned and hence no offense had been committed. The cargoes carried in the colonial trade were seldom contraband and were always going ostensibly to a neutral port where they were in demand in the ordinary course of trade. The difficulty in the way of proving the ultimate destination until after it was ascertained that the goods had been carried beyond the neutral port was thus ordinarily insuperable But a cargo of arms and ammunition, bearing the significant initials of the confederacy, consigned to a confederate agent at a confederate port, or at an insignificant island thereby, carried on a ship with false and contradictory papers, was in itself evidence which could not properly be disregarded by any court which declined to close its eyes to facts and be imposed upon by a mere fiction.

The doctrine in the last analysis means simply that a person cannot be permitted to do by indirection what he is forbidden to do directly and that a fraudulent act is none the less fraudulent and objectionable because concealed beneath the forms of legality. The admitted principle is applied to facts as they are and not as they are made to appear to be. The doctrine does not rest upon a fiction; it looks beneath the fiction to the facts and if, as has been said, there is no place in international law for fictions, the doctrine should be accepted without further objection. A vessel sailing from A to C with a pretended destination to an intermediate destination at B claims the benefit of a fiction when it asserts that the run from A to B constitutes a complete voyage. The fact stripped of all pretense is that there is one continuous voyage from A to C, although made circuitously with a fictitious termination at B. It may

be conceded that it is of the essence of the administration of prize law that a ship can only be condemned “out of her own mouth;" that in the first instance the case must be heard upon evidence found on the ship, such as papers, the testimony on oath of the master, officers and other persons on board at the time of the capture. If the papers are regular and nothing is found which casts suspicion upon their genuineness, the ship is entitled to proceed, although the cargo, if contraband and destined for a belligerent, may be condemned. But if the papers are incomplete, ambiguous, contradictory or fraudulent, or the sworn statements of the parties disclose suspicious circumstances, the court may resort to other sources for evidence of the truth. The general doctrines of the law of evidence as administered in the municipal courts is not applicable in prize courts. But it cannot be that any court is required to close its eyes to obvious facts and decline to look beneath a cover of fraud for the truth which lies there concealed. It cannot be necessary in order to maintain the freedom of the seas for the benefit of neutral trade and protect the rights of actual neutrals who are in good faith observing the obligations imposed by the laws of neutrality to construe the law for the special protection of persons who are secretly aiding one belligerent to the injury of the other.

But notwithstanding the protests of jurists, governments continued to recoginze and enforce the doctrine of continuous voyages in connection of contrabånd goods. Thus in 1885 the French government claimed the rights to seize vessels carrying contraband goods to China while on a voyage from a neutral port to the English port of HongKong. So in 1895, during the war between Italy and Abyssinia the doctrine was applied to the carriage of contraband goods destined ostensibly to a neutral port but with an ultimate overland destination to a belligerent country. The facts bring this case directly within the doctrine of the Peterhof and the other Matamoras cases. The ship Doelwijk, with a cargo of arms and ammunition, anchored in the roadstead off Rotterdam and sailed therefrom with a crew signed for Kur

73 Geficken, Chine et le Droit Int., Revue de Droit Int. et de Légis. Com., tom. xvii, p. 148.

rachee in the English Indies with an intermediate destination of Port Said for orders. The Italian government, acting upon information received from its foreign representatives and with the knowledge of the previous landing of arms at the neutral port of Djibouti, instructed its cruisers that if when the Doelwijk came out of the straits of Bab-elMandeb, she turned to the right toward the Gulf of Tadjoura instead of the left on the ordinary route to Kurrachee, she should be immediately searched and if evidence of a hostile destination was found, taken to Massoua and proceeded against in the prize courts. On the night of August 8, 1896, departing from Kurrachee, the Doelwijk proceeded toward D ibouti and was thereupon captured and taken to Massoua. Upon investigation it was found that the cargo was composed of rifles, cartridges, sabers and other munitions of war. The quarantine papers given the ship by the authorities at Port Said described her as a British vessel but the nationality papers, viséed on July 30,

described her as a Dutch ship. The papers found on board also disclosed that the ship belonged to one Ruys, "armateur et directeur du Lloyd hollandais.” The ship had been chartered March 13, 1896, by the firm of Lacarrière et Cie, to depart on March 17, 1896, with the condition that the captain should take his orders only from the charterer. It also appeared that while the ship's papers gave the destination as Kurrachee the bills of lading signed by the captain gave the destination as Port Said for orders. The bills of lading designated the arms as having been shipped by Ruys et Cie as agents but named no consignee, being consigned to order. No other bills of lading were found on board but the firm of Lacarrière produced others signed also by the captain which gave the destination as Djibouti. Certain correspondence between Ruys and the captain, showed that the goods were to be carried to Djibouti and that everything there was prepared for their disembarkment and reception. Ruys at Rotterdam made no attempt to conceal the fact that the ship was destined for Djibouti. The arms, which formed a part of the cargo were of an antique pattern and seemed especially adapted for the use of the Abyssinians. After full argument the prize court decided that both the ship and cargo were subject to condemnation on the ground that the ship was engaged in carrying contraband of war to Abyssinia by way of the neutral port of Djibouti. It was said that under the circumstances the destination of the cargo and not that of the ship determined the right to

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