SOUTH AFRICAN WAR

13. the destination of the vessel appeared to have been bona fide neutral, but that, inasmuch as it was probable that the vessel had by that time been carried before a prize court of the United States for adjudication, and that the adjudication might shortly follow, if it had not already taken place, the only instruction that he could at present give to Lord Lyons was to watch the proceedings and the judgment of the court, and eventually transmit full information as to the course of the trial and its results.

The prize court of the United States, in a long and considered judgment, decreed confiscation both of the vessel and the cargo. The owners applied for the intervention of Her Majesty's Government, and forwarded in support of their application an opinion by two English counsel of considerable eminence.

The real contention advanced in this opinion was that the goods were, in fact, bona fide consigned to a neutral at Nassau. It can not, therefore, be adduced in support of the doctrine now advanced by the German Government. But Her Majesty's Government, after consulting the law officers of the Crown, distinctly refused to make any diplomatic protest or enter any objection against the decision of the United States prize court, nor did they ever express any dissent from that decision on the grounds on which it was based.

The volume which is described in Count Hatzfeldt's note as "The Manual of Naval Prize Law of the British Admiralty," and from which Count Hatzfeldt quotes certain phrases as expressing the view of the lords commissioners on this subject, is, in fact, a book originally compiled by Mr. (now Sir Godfrey) Lushington, which was published under the authority of the lords commissioners as stating in a convenient form the general principles by which Her Majesty's officers are guided in the exercise of their duties; but it has never been asserted and can not be admitted to be an exhaustive or authoritative statement of the views of the lords commissioners. The preface to the book states that it does not treat of questions which will ultimately have to be disposed of by the prize court, but which do not concern the officer's duty of the place and hour. 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. In a portion of the introduction the author discusses the question of destination of the cargo, as distin guished from destination of the vessel, in a manner by no means favourable to the contention advanced in Count Hatzfeldt's note. Moreover, Professor Holland, who edited a revised edition of this

manual in 1888, in a recent letter published in the Times, has expressed an opinion altogether inconsistent with the view which the German Government endeavour to found upon the words of the manual.

In the opinion of Her Majesty's Government, the passage cited from the Manuai, "that the destination of the vessel is conclusive as to the destination of the goods on board," has no application to such circumstances as have 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. (Ibid. p. 18.)

The British Admiralty Manual of Naval Prize Law, 1888, stated:

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.

Paragraph 73 of this manual provided as to the cargo that if the destination of the vessel on board of which the cargo was should be neutral, then the "destination of the goods should be considered neutral," even if the goods have apparently an ulterior hostile destination.

Report in 1905.-In the Report of the British Royal Commission on Supply of Food and Raw Material in the Time of War, 1905, the doctrine of continuous voyage is stated as follows:

Goods, moreover, whatever may be their intrinsic character, are not contraband unless they have a belligerent destination, but there has been during the last half century much discussion as to the evidence necessary to establish the fact that goods are intended for the enemy's use. If the destination of the ship carrying the goods is an enemy's port, this is held to be conclusive evidence as against absolutely contraband goods, but to exonerate the goods it is not sufficient to show that the ostensible destination of the ship is a neutral port. If after touching and even landing and colorably delivering her cargo at such a port, she is in reality intended to proceed with the same cargo to an enemy's port, the voyage is held to be "continuous" and the destination to be

NAVAL CONFERENCE, 1908-1909

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hostile throughout. Moreover, even when the destination of the ship is bona fide, a neutral port, it does not follow that she is not engaged in the carriage of contraband, should it appear that the goods in question have an ulterior destination, to be attained by transshipment, over land conveyance or otherwise, for the use of the enemy. In case of goods ancipitis usus the requirements as to destination are stricter, and to render such articles confiscable by a belligerent, it is necessary to show that they are intended to reach a port of naval or military equipment belonging to the enemy, or occupied by the enemy's naval or military forces, for the enemy's fleet at sea, or for the relief of a port besieged by such belligerent." (Vol. 1, p. 23, sec. 97.)

International Naval Conference, 1908-1909.-In the invitation to the international naval conference which drew up the Declaration of London in 1908-9, Sir Edward Grey suggested as one of the questions for the conference "The doctrine of continuous voyage in respect both of contraband and of blockade."

In the letter of Sir Edward Grey, December 1, 1908, naming the delegates to the International naval conference, he said of continuous voyage:

25. The principle underlying the doctrine of continuous voyage is not of recent origin, and may be regarded as a recognized part of the law of nations. Its application to vessels carrying contraband has already been incidentally explained in paragraph 15 of the present instructions, as justifying the seizure of any neutral ship carrying a contraband cargo which is in fact destined for enemy territory, whether the cargo was to be carried to such territory by the ship herself, or after transshipment, by another vessel, or by overland transport from a neutral port.

26. For the purposes of blockade, on the other hand, the destination justifying capture is that of the ship, and not of the cargo; and a vessel whose final destination is a neutral port can not, unless she endeavours, before reaching that destination, to enter a blockaded port, be condemned for breach of blockade, although her cargo may be ear-marked to proceed in some other way to the blockaded coast. His Majesty's Government believe that all the powers will probably be in agreement on this point, unless the United States were to maintain that the condemnation pronounced by their Supreme Court in the well-known case of the Springbok extended the application of the doctrine of continuous voyage to breaches of blockade, and rendered the vessel carrying a cargo destined for a blockaded port liable to seizure, even

though she herself was not proceeding to such port. It is, however, exceedingly doubtful whether the decision of the Supreme Court was in reality meant to cover a case of blockade-running in which no question of contraband arose. Certainly, if such was the intention, the decision would pro tanto be in conflict with the practice of the British courts. His Majesty's Government see no reason for departing from that practice, and you should en deavour to obtain general recognition of its correctness. (Parliamentary Papers, Misc. No. 4, 1909, p. 27.)

The question of regulation of continuous voyage gave rise to divergent views, as is evident in the report of the British Delegation to Sir Edward Grey on March 1, 1909, in which the delegation says of continuous voyage:

As the powers by whose prize court the doctrine has always been upheld and applied were naturally reluctant to renounce a right which they claimed to be founded in logic and justice and as, on the other hand, its abandonment was made a vital issue by those who refused to acknowledge it, there seemed at one time to be a danger of the complete breakdown of the conference at this point. (International Naval Conference, Misc. No. 4, 1909, p. 96.)

Agreement among the 10 leading maritime powers that signed the Declaration of London was embodied in article 30, as follows:

Absolute contraband is liable to capture if it is shown to be destined to the territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails either transshipment or transport over land.

Of this article the general report of the naval conference says:

The articles included in the list in article 22 are absolute contraband when they are destined for a territory of the enemy or for a territory occupied by the enemy, or for his armed military or naval forces. These articles are liable to capture as soon as a similar final destination can be shown by the captor. It is not, therefore, the destination of the vessel which is decisive, it is the destination of the goods. It makes no difference if these goods are on board a vessel which is to discharge them in a neutral port; as soon as the captor is able to show that the goods are to be forwarded from there by land or sea to an enemy country, that

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is sufficient to justify the capture and subsequent condemnation of the cargo. It is the very principle of continuous voyage, which as regards absolute contraband is thus established by article 30. (1909 Naval War College, International Law Topics, p. 75.)

Continuous voyage as related to conditional contraband was provided for in article 35:

Conditional contraband is not liable to capture, except when on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged at an intervening neutral port.

The ship's papers are conclusive proof of the voyage of the vessel as also of the port of discharge of the goods, unless the vessel is encountered having manifestly deviated from the route which she ought to follow according to the ship's papers and being unable to justify by sufficient reason such deviation. (Ibid. p. 85.)

On this the general report says:

As has been said above, the doctrine of continuous voyage is excluded for conditional contraband. This then is liable to capture only if it is to be discharged in an enemy port. As soon as the goods are documented to be discharged in a neutral port they can not be contraband, and there is no examination as to whether they are to be forwarded to the enemy by sea or land from that neutral port. This is the essential difference from absolute contraband. (Ibid. p. 85.)

Parliamentary discussion.-Even though the Declaration of London was not ratified by Parliament, the doctrine of continuous voyage did receive some considerations, as is seen in the remarks of Mr. McKinnon Wood on June 28, 1911:

I come now to the doctrine of continuous voyage upon which we have been attacked. * The result of the agreement is very satisfactory. The doctrine is established where it is important and given up where it is of no practical value. It is agreed in the case of absolute contraband that it is very important to us. It is said that we give an advantage to foreign nations who can bring things in by land. Never was there a more ridiculous argument. It is an advantage you can not deprive them of. (Hansard, Commons, v. 27, p. 454.)

Regulations in 1914.-While the Declaration of London had not been ratified in 1914, the rules of this Declaration