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sponding danger to the other belligerent. Against this danger he must have an increased ability to protect himself. There may be a case in which a maritime state is at war with a state having no seaport. The regular port of entrance to the inland state may be within neutral territory. With this state there is no war, therefore the port is not subject to blockade, and the transportation of supplies in this manner can not be interrupted by blockade. The supplies can not be classed as contraband if the destination of the vessel is to determine the destination of the cargo. Under the strict interpretation of the old rules no pressure could be put on the inland state by cutting off supplies of warlike material thus transported. It is obvious that such a condition would be unjust and would deprive the belligerent of the right to prevent trade in contraband destined for his enemy. The interposition of an ostensible neutral destination might be possible in many other instances, even when both belligerent states were maritime states. In the case of the war with the inland state, it is claimed there would be no more than the exercise of a war right in visiting and searching and sending in for adjudication by a prize court vessels carrying cargo in fact destined for the enemy if taken outside neutral jurisdiction. Similarly in cases where the hostilities might be between maritinie states, it is only reasonable to look to the actual destination of the contraband goods. In such cases the proof of hostile destination should be reasonable and not simply a remote inference,
It may be said that the doctrine of continuous voyages, as set forth in the cases consequent upon the civil war, is a considerable extension of the doctrine as understood before that time. In some instances the decisions seem to have followed the lines of policy rather than legal precedent or reasoning.
As shown above, the American position has been widely criticised and condemned. Many of the best authorities have been thoroughly opposed to the American view. These authorities represent practically all states. It should be noted, however, that in some instances the criticism is not so much directed toward the principle in
volved as toward the application of the principle without abundant proof. Even Gessner, while vigorously opposing the Springbok decision, admits that the question is really one of actual destination of the cargo for enemy use. He maintains that seizure is warranted in case hostile destination of the cargo is clearly established, even though the articles are in transitu to a neutral port which may be merely an intermediate stopping place from which the contraband will be forwarded to a hostile destination. He also admits that a hostile destination might be evident if a belligerent fleet were in a neutral port.
It has sometimes been stated that the application of the doctrine of continuous voyage limits the freedom of neutral commerce. The trade in contraband is undertaken in time of war particularly because of the exceptional profits. The profits of successful trade in contraband articles at such a time are exceptional because the possession of such articles by the one belligerent gives him an advantage over the other belligerent which he would not otherwise have. For this advantage he is willing to pay a war price. The neutral furnishing bim this advantage should not be permitted to act with impunity, nor is it reasonable that the other belligerent should be required to permit such action. The whole transaction would be contrary to the spirit of the laws of neutrality and would simply serve to mask an unneutral act as a formally legitimate transaction. There is no reason to regard a voyage as more legitimate because made more circuitously. The number of stopping places does not necessarily change the ultimate destination of a vessel nor the number of transshipments the destination of its cargo.
The name under which the various aspects of this matter have been usually treated has served to unduly obscure the essential questions. These are such as: Is the destination of the vessel a blockaded port, even though stopping at a neutral port on the voyage? Is the destination of the cargo a blockaded port? If the cargo is contraband is it destined for the enemy even though directed toward a neutral port? The destination of vessel or cargo is the fact that determines its treatment.
It seems hardly possible that valid objection can be raised against this position, which has become more and more recognized. It is not necessary to stretch the ancient opinions or practices to cover new conditions.
In reply to the question, “What position should be assumed on the doctrine of continuous voyage?” it may be properly maintained that the doctrine, when clearly defined, should prevail. This means that the vessel and cargo may be captured wherever such vessel and cargo may be found outside of neutral jurisdiction, in case there is ample evidence of destination to a blockaded port and that the interposition of a neutral port of call does not, whatever acts may there be performed, change the destination. This also means the treatment of the cargo is to be determined by its actual destination at the time of visit. It makes no difference whether a cargo destined for the enemy is carried on a final stage of its journey by overland or over-sea transportation, the destination of the cargo is the essential fact, not the means by which it may reach its destination. Of course, the belligerent is always liable for any seizures which may be made of vessels and cargoes having innocent destinations, and for improper seizures damages must be paid. Ample evidence would therefore be necessary to justify seizure.
Regulation. -As it has been shown from precedent, practice, regulations, and rules that the destination is the essential fact in determining the treatment of vessel and ,cargo, the regulation in regard to the doctrine of contin. uous voyage should particularly cover this point. A vessel and cargo is liable to capture if it has for its destination a blockaded port, a besieged place, the fleet of the enemy, or similar belligerent destination. Outside of neutral jurisdiction contraband goods belonging to or destined for the enemy's military forces are liable to capture even though the vessel carrying the goods may be bound for a neutral port.
The regulation may then be briefly stated as follows: The actual destination of vessels or goods will determine their treatment on the seas outside of neutral jurisdiction.
Should the Declaration of Paris, 1856, be revised.
The Declaration of Paris, 1856, should be revised:a
DISCUSSION AND NOTES.
Recognition of rights of those engaged in maritime commerce.- Neutrality, as now understood, was practically unknown in the Middle Ages. Grotius, in 1625, had only a vague idea of this status. Trade had, however, very early brought about a recognition of the rights of those engaged in commerce. Distinctions were made according to the nature of the goods and the nationality of the vessel carrying the goods.
The States of northern Europe gradually inclined toward the principle of “free ships free goods," which was enunciated in the treaty of Utrecht in 1713, Aix-la-Chapelle, 1748, and supported in the armed neutrality of 1780 and of 1800. Other nations opposed, and practice and profession varied with the times. Many discussions on the status of private property at sea took place in the early days of the United States.
The principle of “free ships, free goods,” except contraband of war, has been widely inserted in United States treaties -Algiers, 1815, 1816; Bolivia, 1858; Brazil, 1828; Colombia (New Granada), 1846; Dominican Republic, 1867; Ecuador, 1839; France, 1778; Guatemala, 1849; Haiti, 1864; Italy, 1871; Mexico, 1831, and many others. At the present time the principle is inserted in treaties in
a For the binding force of this Declaration see notes on Protocol No. 24, p. 110.
force with Bolivia, 1858; Brazil, 1828; Colombia, 1846; Haiti, 1864; Italy, 1871; Peru, 1856; Prussia, 1785; Russia, 1854; Sweden and Norway, 1783.
The position of Great Britain and France in 1854 was such as to give great weight to any declaration which might be made by these states. Their attitude toward the treatment of neutral property at sea and toward privateering before this time had not been the same. It was necessary, however, that in regard to affairs in southeastern Europe they act together. Discussions in regard to policy of maritime warfare took place, and they gradually approached an agreement upon the treatment of neutral property, privateering, and blockade, which prepared the way for the declaration of Paris in 1856.
The British declaration, with reference to neutrals and letters of margue, March 28, 1854, and the French declaration were practically the same:
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an ally, is desirous of rendering the war as little onerous as possible to the powers with whom she remains at peace.
To preserve the commerce of neutrals from all unnecessary obstruction Her Majesty is willing, for the present, to waive a part of the belligerent rights appertaining to her by the law of nations.
It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war and of preventing neutrals from bearing the enemy's dispatches, and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbors, or coasts.
But Her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel unless it be contraband of war.
It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships, and Her Majesty further declares that being anxious to lessen as much as possible the evils of war and to restrict its operations to the regularly organized forces of the country it is not her present intention to issue letters of marque for the commissioning of privateers. Westminster, March 28, 1854. (46 State Papers, p. 36.)
The Declaration of Paris, 1856.–The rights which France and Great Britain had thus waived by the concurrent declarations of March 28-29, 1854, naturally became the subject of negotiation at the close of the war. At the