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them. If the destination is really to a hostile port—if that is the plan or scheme of the voyage—it is, of course, immaterial what formal acts intended to deceive are interposed (p. 667, sec. 508).
The Turkish declaration of May 12, 1877, contains the following:
3. Afin d'empêcher la contrebande de guerre, le Gouvernement Ottoman usera du droit de visite tant en haute mer que dans les eaux Ottomans et lors du passage par les Détroits des navires neutres en destination d'un port Russe ou d'un point de la côte occupé par l'ennemi, ou même, en cas de suspicion, en destination d'un port Ottoman ou neutre.
The subject of destination is quite fully treated in articles of the British Admiralty Manual of Naval Prize Law (Holland's edition, 1888), issued by authority of the Lords Commissioners of the Admiralty of Great Britain:
DESTINATION OF THE VESSEL.
67. If any of the Goods are fit for purposes either of War exclusively or of War as well as of Peace, the Commander of the Cruiser should proceed to ascertain the destination of the Vessel. This should be done by inspection of her Charter party, her Log book, and other documents, and by inquiries from her Master and Crew.
68. A Vessel's destination should be considered Neutral if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be Neutral, and if in no part of her Voyage she is to go to the Enemy's Fleet at Sea.
69. A Vessel's destination should be considered Hostile if either the port to which she is bound, or any intermediate port at which she is to call in the course of her voyage, be Hostile, or if in any part of her Voyage she is to go to the Enemy's Fleet at Sea.
70. It frequently happens thata Vessel's destination is expressed in her papers to be dependent upon contingencies. In such case the destination should be presumed Hostile if any one of the ports which under any of the contingencies she may be intended to touch at or go to be Hostile; but this presumption may be rebutted by clear proof that the Master has definitively abandoned a Hostile destination and is pursuing a Neutral one.
71. The ostensible destination of the Vessel is sometimes a Neutral port, while she is in reality intended, after touching and even landing and colorably delivering over her cargo there, to proceed with the same cargo to an Enemy port. In such a case the voyage is held to be “Continuous," and the destination is held to be Hostile throughout.
72. The destination of the Vessel is conclusive as to the destination of the Goods on board. If, therefore, the destination of the Vessel be Hostile, then the destination of the Goods on board should be consid
CASES IN SOUTH AFRICAN WAR.
ered Hostile also, notwithstanding it may appear from the Papers or otherwise that the Goods themselves are not intended for the Hostile port, but are intended either to be forwarded beyond it to an ulterior neutral destination, or to be deposited at an intermediate Neutral port.
73. On the other hand, if the destination of the Vessel be Neutral, then the destination of the Goods on board should be considered Neutral, notwithstanding it may appear from the Papers or otherwise that the Goods themselves have an ulterior Hostile destination, to be attained by transshipment, overland conveyance, or otherwise.
Question of destination of cargo in South African war. The British rules seem logical and it was expected that this manual expressed the British point of view. The attitude of Great Britain was, however, tested in the South African war in December, 1899. The States with which Great Britain found herself at war were inland States with no seaports. The port through which supplies could be most easily forwarded to the South African belligerents was the neutral Portuguese port of Lourenço Marquez on Delagoa Bay. This port was connected by rail with the South African Republic. Great Britain maintained the right to visit and search vessels.
During the South African war, in December, 1899, and January, 1900, three German vessels were seized by the the British war vessels. These vessels were the Herzog, the General, and the Bundesrath. They were seized on suspicion of carrying contraband and enemy persons to the South African Republic. Of this action Germany took cognizance.
The German Government, on learning of the seizure of the Bundesrath, immediately protested and the German ambassador stated to the Marquis of Salisbury:
That the Imperial Government, after carefully examining the matter and considering the judicial aspects of the case, are of the opinion that proceedings before a Prize Court are not justified.
This view is grounded on the consideration that proceedings before a Prize Court are only justified in cases where the presence of contraband of war is proved, and that, whatever may have been on board the Bundesrath, there could have been no contraband of war, since, according to the recognized principles of international law, there can not be contraband of war in trade between neutral ports.
He also supported his opinion by reference to the British Admiralty Manual of Naval Prize Law which declared
that “a vessel's destination should be considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral," and "the destination of the vessel is conclusive as to the destination of the goods on board."
Lord Salisbury replied that the Admiralty Manual stated “in a convenient form the general principles by which Her Majesty's officers are guided in the exercise of their duties” and That it does not treat of questions which will ultimately have to be disposed of by the Prize Court. * * In the opinion of Her Majesty's Government the passage cited from the manual “that the destination of the vessel is conclusive as to the destination of the goods on board,” has no application to such circumstances as had now arisen.
It can not apply to contraband of war on board of a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country.
The true view in regard to the latter category of goods is, as Her Majesty's Government believe, correctly stated in paragraph 813 of Professor Bluntschli's “Droit International Codifié” (French translation of 1874, second edition of the work of this eminent German jurist): “Si les navires ou marchandises ne sont expédiés à destination d'un port neutre que pour mieux venir en aide à l'ennemi, il y aura contrebande de guerre et la confiscation gera justifiée.”
Her Majesty's Government are unable, therefore, to agree that there are grounds for ordering the release of the Bundesrath without examination by the Prize Court as to whether she was carrying contraband of war belonging to or destined for the South African Republics. But they fully recognize how desirable it is that this examination should be carried through at the earliest possible moment, and that all proper consideration should be shown for the owners and for innocent passengers and merchandise on board of her. Repeated and urgent instructions have been sent by telegraph for this purpose, and arrangements have been made for the speedy transmission of the mails. (Parliamentary Papers, Africa, No. 1, (1900) ).
The British Government was placed in an uncomfortable position; no contraband was found.
As we have seen, the examination proved futile, the compensation was duly paid, and the incident closed. It is unlikely that the exact circumstances of the Bundesrath and her consorts will ever be repeated or that we shall find ourselves at war with a civilized power possessing no seaboard. But should we in the future become involved in hostilities with a maritime power it is certain that the interpretation of the questions grouped generally under the term of “continuous
voyage” will assume grave importance. And I venture to think that the attitude of whatever British Government may be in office will tend rather to the views expressed by Lord Salisbury than to those enunciated by Mr. Hall, and that the destination of the cargo, not merely the destination of the vessel, will be the criterion. (Atlay's note to Hall's International Law, 5th ed., p. 671.)
Count von Bülow, in the German Reichstag, on January 19, 1900, discussing the seizure of certain German steamers by British war vessels, said:
I should like to lay down the following propositions, drawn up in conjunction with other competent departments, as a system of law which shall be operative in practice, and a disregard for which would, in our opinion, constitute a breach of international treaties and customs:
1. Neutral merchant ships on the high seas or in the territorial waters of the belligerent Powers (apart from the right of convoy, which does not arise in the case in point) are subject to the right of visit by the war ships of the belligerent parties. This undoubtedly applies to waters which are not too remote from the seat of war. No special agreement exists at present as regards mail steamers.
2. The right of visit is to be exercised with as much consideration as possible and without undue molestation.
3. The procedure in visiting a vessel consists of two or three acts, according to the circumstances of each case-stopping the ship, examining her papers, and searching her. The first two acts may be undertaken at any time and without other preliminary proceeding. If the neutral vessel resists the order to stop, or if irregularities are discovered in her papers, or if the presence of contraband is revealed, then the belligerent vessel may capture the neutral in order that the case may be investigated and decided upon by a competent prize Court.
4. By the term “contraband of war” only such articles or persons are to be understood as are suited for war and at the same time are destined for one of the belligerents. The class of articles to be included in this definition is a matter of dispute, and, with the exception of arms and ammunition, is determined, as a rule, with reference to the special circumstances of each case, unless one of the belligerents has expressly notified to the neutrals, in a regular manner, what articles it intends to treat as contraband, and has met with no opposition.
5. Discovered contraband is liable to confiscation, whether with or without compensation depends on the circumstances of each case.
6. If the seizure of the vessel was not justified, the belligerent State is bound to order the immediate release of ship and cargo, and to pay full compensation. According to the above, and in view of the present practice of nations,
it would not have been possible to lodge a protest against the stopping on the high seas of the three steamers of the East African Line, or against the examination of their papers. On the other hand, by the same standard, the seizure and conveying to Durban of the Bundesrath and Herzog and the discharging of the cargoes of the Bundesrath and the General were undertaken upon insufficiently founded suspicion, and do not appear to have been justified.
I should wish to take this opportunity for observing that we strove from the outset to induce the English Government, in dealing with neutral vessels consigned to Delagoa Bay, to adhere to that theory of international law which guarantees the greatest security to commerce and industry and which finds expression in the principle that for ships consigned from neutral States to a neutral port the notion of contraband of war simply does not exist. To this the English Government demurred. We have reserved to ourselves the right of raising this question in the future—in the first place, because it was essential to us to arrive at an expeditious solution of the pending difficulty; and secondly, because, in point of fact, the principle here set up by us has not yet met with universal recognition in theory and practice. (Quoted in Parliamentary Papers, Africa No. 1 (1900), p. 24.)
During the war in South Africa Lord Salisbury stated the position of the British Government on what constitutes hostile destination as follows:
Lord Salisbury to Mr. Choate.
FOREIGN OFFICE, January 10, 1900. Dear MR. CHOATE: Our view is that food stuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure. Believe me, etc.
SALISBURY. (U. S. Foreign Relations, 1900, p. 555.) On February 24, 1900, Mr. Choate reported that,
Lord Salisbury suggested that an ultimate destination to citizens of the Transvaal, even of goods consigned to British ports on the way thither, might, if the 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.
(U. S. Foreign Relations, 1900, p. 596.) To the suggestion made by Mr. Salisbury, Mr. Hay said:
The Department has not failed to observe the suggestion made to Mr. Choate by Lord Salisbury that an ultimate destination to citizens of the Transvaal, even of goods consigned to British ports on the way