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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 contraband 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.73 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


13 Geffcken, 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 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.78 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

74 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.

76 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.78

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

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.

70 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. Ixv, 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.


views of the lords commissioners." After further explaining away the embarrassing statement in the manual, Lord Salisbury said:

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.

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. 52 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 80 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.



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