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thither, might, if transportation were viewed as one

" continuous voyage," be held to constitute, in a British vessel, such a "trading with the enemy” as to bring the vessel within the provisions of the municipal law.

In view of the prospect of a practical solution of the question of the seizures along the lines arranged between Mr. Choate and Her Majesty's Government, it is not deemed necessary for the Department to express at present either its assent or dissent to the said suggestion; but it would regret to have such an issue actually raised by the British Government, and it does not seem probable that it will be done, either on account of the seizures made in the future or through the failure to consummate the settlement already arranged for the seizures which have been made. (U. S. Foreign Relations, 1900, p. 609.)

In referring to the doctrine of continuous voyage as applied by Great Britain during the South African war, Professor Despagnet gives the position which is maintained by many European writers. He says:

Pour nous, la théorie de la continuité de voyage est toujours inadmissible, même dans le cas où il s'agit de contrebande dirigée vers un pays neutre limitrophe de l'État ennemi qui n'a pas d'accès à la mer. Mais, objecte-t-on, la répression de la contrebande est alors impossible et le pays ennemi recevra impunément des arines et des munitions venant de l'étranger au détriment de son adversaire impuissant à s'y opposer? Nous répondons que ce résultat n'est pas plus fâcheux ni plus inique que la faculté laissée au belligérant, pays maritime, d'arrêter la contrebande au préjudice de son ennemi, tandis que celui-ci, faute de marine, ne pourrait entraver en rien l'arrivée de la contrebande dans les ports de l'autre. N'était-ce pas choquant de voir l'Angleterre acheter et recevoir, sans obstacle, de l'étranger, des canons, des obus, des chevaux, des mulets, etc., tandis que les croiseurs brittaniques fermaient aisément la voie des ports de la Mozambique, la seule par laquelle la contrebande pouvait parvenir aux Boërs? Entre deux pays maritimes, la situation est égale au point de vue de la répression de la contrebande, ou du moins l'inégalité n'existe entre eux que par suite de la différence possible de leurs forces sur mer, tandis que, en cas de guerre entre un pays maritime et un autre qui ne l'est pas, si l'on autorise la saisie de la contrebande dirigée vers un pays neutre qui sépare ce dernier de la mer, on ne maintient la possibilité de la saisie que pour le pays maritime tandis qu'elle est impossible pour l'autre. Même en écartant la théorie du voyage continu en pareil cas, il n'en restera pas moins que le pays non maritime souffrira d'une inégalité fâcheuse, soit parce que les transports par terre sont plus onéreux et parfois plus longs, soit parce qu'il se heurtera souvent au mauvais vouloir ou aux scrupules des pays neutres dont le territoire le sépare de la mer et qui pourront entraver le passage à leur frontière des objets de contrebande: du moins cette inégalité vient-elle d'un fait inéluctable, de la situation topographique du belligérant, et il est inadmissible qu'on l'aggrave par une prétendue fiction juridique, la continuité de voyage qui aboutit à une véritable injustice." (Revue Générale de Droit International Public, 1900, p. 810.)

Other cases involving destination of cargo.The effect of destination on the liability of goods is very important, as is seen in the case of the Peterhoff, in 1866 (5 Wallace Supreme Court Reports, 28):

And contraband merchandise is subject to a different rule in respect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended; the former when destined to the hostile country or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles not contraband might be sent to Matamoras, and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character, destined in fact to a State in rebellion or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras.

The appeal of the shippers on the Springbok to the British Government led to an investigation. Earl Russell decided that there was not sufficient reason to interfere, as the evidence seemed to show

That the cargo of the Springbok, containing a considerable portion of contraband, was never really and bona fide destined for Nassau, but was either destined merely to call there or to be immediately transshipped after its arrival there without breaking bulk and without any previous incorporation into the common stock of that colony, and then to proceed to its real destination, being a blockaded port. (Parliamentary Papers, Misc. No. 1 (1900).)

The case of the Dutch vessel Doeluyk has given rise to discussion. This case involves the application of the doctrine of continuous voyage to a vessel bound to a port in a neutral territory, which port was the natural port of entry to a country which had no seacoast.

The Doelwyk was captured on August 8, 1896, by the Italian cruiser Etna at a point in the Red Sea about 10 miles off the French port of Djibouti. There was a state



of war between Italy and Abyssinia. The cargo consisted mainly of arms and munitions of war. The seizure of the Doelwyk was upon the high seas. The immediate destination seemed to be a neutral port from which transportation to the belligerent territory would be easy. The cargo was mainly contraband.

The rule of the Italian code for the merchant marine in Article 2154 provides that

Neutral vessels having a cargo in part or wholly contraband bound for the enemy country shall be captured and brought into a home port, where the ship and contraband merchandise will be confiscated and the other merchandise be subject to the disposition of the owners.

Various technical questions in regard to the declaration of war and the conclusion of peace were raised, but the decision of the prize court condemned the vessel and contraband cargo; but the decision was not carried out because of the conclusion of peace. The decision, however, admits the doctrine of continuous voyage, even when land transportation over neutral territory must take place before the contraband reaches its hostile destination. (For text of decision see Gazetta ufficiale, December 15, 1896.)

The second stage of transportation, from the neutral port to the enemy, in the case of the Springbok was from a neutral port to the enemy by water, and in the case of the Doelvryk by land.

Both cases sustained the doctrine of continuous voyage. Both decisions have received much criticism.

The general principle is that contraband is liable to seizure when destined for the enemy. The question of destination therefore becomes a vital one. The doctrine of continuous voyage is an attempt to set up a real prospective destination in face of an immediate apparent destination. This doctrine may apply to both ship and cargo or to cargo alone.

As applied to the ship it is an attempt to bring by judi

a Art. 215. “Le navi neutrali criche in tutto od in parte di generi di contrabando di guerra dirette ad un paese nemico, saranno catturate e condotte in uno dei porti dello Stato dose la nave e la merce di contrabando saranno confiscate, e le altre mercanzie lasciate a disposizione dei proprietarii."

cial action the consequences of a voyage from a neutral to a belligerent port to bear on a voyage between neutral ports. The guilt attaching to the voyage to the belligerent port is cast back on the voyage to a neutral port. It is an attempt to punish an intent which is not always capable of proof.

The United States had in 1866 set forth principles which formed a precedent for some of these later cases. This case introduced also the question of destination by overland transportation from the port at which the goods were to be landed as a factor in determining the treatment of the goods before reaching the port. In the case of the Peterhoff mention was made of the application of the same principles set forth in the case of the Bermuda. Of this Chief Justice Chase, delivering the opinion of the Court, says:

There is an obvious and broad line of distinction between the cases. The Bermuda and her cargo were condemned because engaged in a voyage ostensibly for a neutral, but in reality, either directly or by substitution of another vessel, for a blockaded port. The Peterhoff was destined for a neutral port with no ulterior destination for the ship, or none by sea for the cargo to any blockaded place. In the case of the Bermuda, the cargo destined primarily for Nassau could not reach its ulterior destination without violating the blockade of the rebel ports, in the case before us the cargo, destined primarily for Matamoras, could reach an ulterior destination in Texas without violating any blockade at all.

We must say, therefore, that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, violated no blockade, and can not be declared unlawful.

Trade with a neutral port in immediate proximity to the territory of one belligerent, is certainly very inconvenient to the other. Such trade, with unrestricted inland commerce between such a port and the enemy's territory, impairs undoubtedly, and very seriously impairs, the value of a blockade of the enemy's coast. But in cases such as that now in judgment, we administer the public law of nations and are not at liberty to inquire what is for the particular advantage or disadvantge of our own or another country. We must follow the lights of reason and the lessons of the masters of international jurisprudence.

Later in the same case, speaking of the contraband goods on board the Peterhoff, the Chief Justice says:

It is true that even these goods, if really intended for sale in the market of Matamoras, would be free of liability, for contraband may REGULATIONS AS TO DESTINATION.


be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles, at least, were destined for the use of the rebel forces then occupying Brownsville, and other places in the vicinity. (5 Wallace, Supreme Court Reports, 28.)

Rules and regulations as to destination. A committee of the Institute of International Law reported on the matter of continuous voyages in 1896. This committee included Lord Reay, Messrs. Barclay, Holland, and Westlake from England, who naturally represented the English point of view. While there was some opposition to the admission of the doctrine, and some desired that the status of contraband be admitted only when goods were bound for an immediate hostile destination, yet the vote of the Institute was for the recognition of the principle that the established final destination was the determining factor.

The rule is as follows:

La destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports, ou bien à un port neutre qui, d'après des preuves evidentes et de fait incontestable, n'est qu'une étape pour l'ennemi, comme but final de la même opération commerciale. (Annuaire de l'Institut de Droit International, 1896, p. 231.)

The Japanese regulations, of March 7, 1904, relating to capture at sea, provide:

Art. 15. The general rule shall be that the destination of a ship is the destination of her cargo.

Art. 16. In the case of a ship, the destination of which is not the enemy's territory, should an intermediate port at which she calls during her voyage be the enemy's territory, or should there be a presumption that she is sailing to meet a ship of war or other ship of the enemy, her destination shall be held to be the enemy's territory.

Art. 17. In the case of a ship, the destination of which is not the enemy's territory, whether she calls at that destination and discharges cargo or not, if there is reason to believe that the cargo in question is being conveyed to the enemy's territory, her voyage shall be regarded as a continuous voyage, and her destination shall be held to have been, from the commencement, the enemy's territory.

Conclusion. The change in the means and methods of transportation has made new regulations necessary.

With the increased opportunity for easy and quick intercourse between the enemy and neutral ports has come a corre

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