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Speaking of the decision in the case of the Springbok, Walker says:

This decision, it is very evident, materially extends the risks of the neutral trader in the interests of the belligerent, and it has accordingly been the subject of severe and not unmerited adverse criticism at the hands of supporters of the freedom of neutral commerce. (Science of International Law, 1893, p. 516.)

Sir Robert Phillimore says:

It seems to me after much consideration, and with all respect for the high character of the tribunal, difficult to support the decision of the majority of the Supreme Court of the United States in the case of the Springbok, that a cargo shipped for a neutral port can be condemned on the ground that it was intended to tranship it at that port and forward it by another vessel to a blockaded port. (International Law, CCXCVIII.)

Hall also takes positive grounds in opposition to the doctrine of continuous voyage, as enunciated by the United States courts. He says:

By the American courts this idea of continuous voyage was seized upon and applied to cases of contraband and blockade. Vessels were captured while on their voyage from one neutral port to another and were then condemned as carriers of contraband or for intent to break blockade. They were thus condemned not for an act-for the act done was in itself innocent, and no previous act existed with which it could be connected so as to form a noxious whole-but on mere suspicion of intention to do an act. Between the grounds upon which these and the English cases were decided there was of course no analogy. The American decisions have been universally reprobated outside the United States, and would probably now find no defenders in their own country. (International Law, 5th ed., p. 669.)

Mr. Atlay, editing this edition of Hall's work, thinks “that the destination of the cargo, not merely the destination of the vessel, will be the criterion” (Note, p. 672), would be the position which would be sustained by the British Government.

The case of the Springbok (1866) has been discussed most widely and seriously. The jurists on the Continent were uniformly opposed to the principles supposed to be enunciated in the decision. A formal statement was issued by some of the leading authorities on international law in 1882. The French text appears in the Revue de Droit International et de Legislation Comparée (Tome xiv, 1882, p. 329), and a translation is given in Wharton's International Law Digest (Vol. III, sec. 362, p. 401) as follows:

Opinion delivered by Professor Arntz, professor of international law in the University of Brussels and advocate; Asser, professor of international law in the University of Amsterdam and legal councilor of the department of foreign affairs at The Hague, advocate, etc.; Bulmerincq, privy councilor, professor of international law in the University of Heidelberg, etc.; Gessner, doctor of civil law, acting imperial councilor of legation at Berlin; William Edward Hall, doctor of laws of the University of Oxford; De Martens, professor of international law in the University of St. Petersburg and councilor at the minister of foreign affairs there, etc.; Pierantoni, professor of international law in the University of Rome and member of the council of diplomatic controversy, etc.; Renault, professor of international law in the Faculty of Law and in the Free School of Political Science at Paris; Alberic Rollin, professor of law in the University of Ghent and advocate, and Sir Travers Twiss, Q.C., formerly professor of international law in London and of civil law in Oxford, late Queen's advocate-general, etc.

“We, the undersigned members of the maritime prize commission, nominated by the Institute of International Law from amongst its members to frame a scheme of international maritime prize law, having been consulted as to the juridical soundness of the doctrine laid down and applied by the Supreme Court of the United States of America in the case of the Springbok, have unanimously given the following opinion:

“That the theory of continuous voyages, as we find it enunciated and applied in the judgment of the Supreme Court of the United States of America, which condemned as good prize of war the entire cargo of the British bark Springbok (1867), a neutral vessel on its way to a neutral port, is subversive of an established rule of the law of maritime warfare, according to which neutral property on board a vessel under a neutral flag, whilst on its way to another neutral port, is not liable to capture or confiscation by a belligerent as lawful prize of war; that such trade when carried on between neutral ports bas, according to the law of nations, ever been held to be absolutely free, and that the novel theory, as before propounded, whereby it is presumed that the cargo, after having been unladen in a neutral port, will have an ulterior destination to some enemy port, would aggravate the hindrances to which the trade of neutrals is already exposed, and would, to use the words of Bluntschli, 'annihilate' such trade, by subjecting their property to confiscation, not upon proof of an actual voyage of the vessel and cargo to an enemy port, but upon suspicion that the cargo, after having been unladen at the neutral port to which the vessel is bound, may be transshipped into some other vessel and carried to some effectively blockaded enemy port.



“That theory above propounded tends to contravene the efforts of the European powers to establish a uniform doctrine respecting the immunity from capture of all property under a neutral flag, contraband of war alone excepted.

“That the theory in question must be regarded as a serious inroad upon the rights of neutral nations, inasmuch as the fact of the destination of a neutral vessel to a neutral port would no longer suffice of itself to prevent the capture of goods noncontraband on board.

“That, furthermore, the result would be that, as regards blockade, every neutral port to which a neutral vessel might be carrying a neutral cargo would become constructively a blockaded port if there were the slightest ground for suspecting that the cargo, after being unladen in such neutral port was intended to be forwarded in some other vessel to some port actually blockaded.

“We, the undersigned, are accordingly of opinion that it is extremely desirable that the Government of the United States of America, which has been on several occasions the zealous promoter of important amendments of the rules of maritime warfare, in the interests of neutrals, should take an early opportunity of declaring, in such form as it may see fit, that it does not intend to incorporate the above-propounded theory into its system of maritime prize law, and that the condemnation of the cargo of the Springbok shall noi be adopted as a precedent by its prize courts.”

The Dolphin, ostensibly prosecuting a voyage from Liverpool to Nassau during the American civil war, was captured off Porto Rico. A claim to the vessel and cargo was made by the British owners on the ground that there was no intention to violate any neutral obligations. The court held that

If we suppose the vessel and cargo to be owned as claimed, and that there was no intention on the part of the owner that the vessel should proceed with the cargo to a port of the enemy, then there would be no ground whatever to justify the capture or condemnation of either of them. Subject to the right of belligerent cruisers to visit and search merchant vessels, to ascertain their neutral or hostile characters and the character of their cargoes, and the legality of their voyages, neutrals possess an undisputed right to trade and carry on commerce among themselves in any kinds of merchandise they please, whether of the nature of contraband of war or not. Indeed, there can be no such thing as articles contraband of war in a strictly neutral trade. But if, on the other hand, it was the intention of the owner that the vessel should simply touch at Nassau, and should proceed thence to Charleston or some other port of the enemy, then the voyage was not a voyage prosecuted by a neutral from one neutral port to another, but was a voyage to a port of the enemy, begun and carried on in violation of the belligerent rights of the United States to blockade the enemy's ports and prevent the introduction of munitions of war. The act of sailing for a blockaded port, with the knowledge of the existence of the blockade and with an intent to enter, is itself an attempt to break it, which subjects the vessel and cargo to capture in any part of its voyage. The Columbia, 1 C. Rob. Adm., 154; The Neptunus, 2 C., Rob. Adm., 110. So, also, the offense of attempting to carry articles contraband of war to the enemy is complete and the vessel liable to capture the moment she enters upon her voyage. The Imina, 3 C., Rob. Adm., 167. The offense consists in the act of sailing, coupled with the illegal intent. The cutting up of a continuous voyage into several parts, by the intervention or proposed intervention of several intermediate ports, may render it the more difficult for cruisers and prize courts to determine where the ultimate terminus is intended to be; but it can not make a voyage which in its nature is one, to become two or more voyages, nor make any of the parts of one entire voyage to become legal which would be illegal if not so divided. When the truth is discovered, it is according to the truth and not according to the fiction, that the question is to be determined. The Maria, 5 C., Rob. Adm., 365; The Wm., id., 385; The Richmond, id., 325; The Thomyris, Edw. Adm., 17.

It is argued that it was lawful for the vessel to go to Nassau, notwithstanding the existence of an intention that she should proceed thence to Charleston, for the reason that, until after she had entered on the last stage of her voyage, the whole matter rested in possibility merely-in intention only, and not in act—and that the intention to commit an offense in futuro is not tantamount in law to its actual commission in prasenti. But this argument begs the whole question. It was not lawful for the vessel to go to Nassau, with an intention of continuing the voyage thence to Charleston in a direct course, without going to Nassau at all. The fallacy consists in supposing that there is something in the intention to stop at a neutral port, which, in itself, is innocent enough, that will extinguish the illegality of an additional guilty intention to proceed on, beyond such a port, to a blockaded port, and thus legitimatize the first stage of the voyage. But the voyage is one, from the port of lading to the port of delivery, and, if unlawful in any part, is unlawful throughout.

It is also argued that a locus penitentione existed until the vessel had departed from Nassau on her voyage to a blockaded port, and that the voyage might be ended there, or changed to a lawful port. But this argument will apply with equal force to a voyage in which no intermediate port is intended to be interposed. The owner or master may in any case, in port or in the middle of the ocean, abandon the illegal purpose and change the voyage. If this be done voluntarily, before capture, the original offense is extinguished, and the vessel will be restored; but if the illegal purpose exists at the time of capture, the vessel is taken in delicto, whether the voyage is prosecuted in a direct course or circuitously. If the illegal purpose is shown to exist at the inception of the voyage, it will be presumed to exist up to the time of




capture, unless it is satisfactorily shown that the purpose had been abandoned and the voyage changed. (The Dolphin, Federal Cases, No. 3975.)

Of the above decision the solicitor of England (Sir Roundell Palmer) said in the House of Commons, June 29, 1863:

If the owners imagine that the mere fact of the vessel touching at Nassau when on such an expedition exonerated her, they were very much mistaken.

Later the principle applied in the case of the Dolphin was cited and made in some respects more definite in the case of the Pearl. The judge said:

I have already decided, in the case of the Dolphin (Case No. 3975), that a vessel bound on a voyage from Liverpool to Nassau, with an intention of touching only at the latter port and of proceeding thence to a blockaded port of the enemy, is engaged in an attempt to violate the blockade, which subjects her to capture in the antecedent as well as in the ultimate stage of the voyage—before arriving at Nassan as well as after having left that port. I think the law also is that if an owner sends his vessel to a neutral port with a settled intention to commence from such a port a series of voyages to a blockaded port he thereby commences to violate the blockade, and subjects his vessel to capture, notwithstanding he may also intend to unlade the vessel at the neutral port, discharge the crew, and give all other external manifestations of an intention to end the voyage at such port. Where a deliberate purpose exists to violate a blockade, and measures are actually taken to accomplish that object, the law couples the act and the intent together and declares the offense to be complete. The resorting, therefore, to a neutral port for the purpose of the better disguising the intention, or of procuring a pilot for the blockaded port, or of perfecting the arrangements so as to increase the chances of successful violation of the blockade, will not in the least extenuate the offense or avoid the penalty. These measures may increase the difficulty of discovering the true intention, but whenever it is discovered it will give to the transaction its true legal character. (Federal Cases, No. 10874.)

Importance of destination of exel. Dana in his note (231) to Wheaton's International Law says:

The examination into the continuous nature of voyages is or may be necessary in reference alike to blockade, trade with enemies, un neutral service, and carrying contraband, and indeed to all cases where the destination of the vessel or cargo is material. The right of the belligerent is to know the facts. The policy of the neutral is to conceal

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