[Footnote 1: Sessional Papers of the House of Commons, Royal Commission on the War in South Africa, Appendices to Minutes of Evidence being C. 1792 (1903).]
On October 18 the ship Avondale Castle had been arrested by the English gunboat Partridge and ordered to return under escort to Durban. The British cruiser Tartar there took over £25,000 in gold which, it was alleged, had been intended for the Transvaal Government. It was found, however, that the gold was consigned to the Delagoa branch of the Transvaal Bank from the Durban branch of the same institution. The allegation against the consignment, it was considered by the prize court, did not sufficiently contaminate the shipment since the destination was proved to be a neutral one and the point of departure an English port. In February the gold was returned to the Bank of Durban because the ultimate destination of the consignment did not warrant the presumption that it was enemy's property.
In November a French steamer, the Cordoba, was hailed by the British cruiser Magicienne. The Cordoba refused to recognize the signal to halt seventy miles out from Lorenzo Marques and was brought to by a blank shot. Her papers, however, failed to show any guilt on her part and she was allowed to proceed to her port of destination, Lorenzo Marques.
These seizures indicate the feeling of suspicion which was prevalent in England that apparently innocent descriptions in the bills of lading of steamers arriving at Lorenzo Marques concealed contraband of war. The question was raised whether the English commanders should not be ordered to open packing cases and the like and not examine merely the manifests in order to furnish evidence which would warrant the confiscation of the goods and possibly the ships carrying contraband, should such be found on board. The Council of the British and Foreign Arbitration Association sent a resolution to the English Government and to that of Portugal which declared: "This association most earnestly and emphatically protests against the permission granted by Portugal to the Boers of the Transvaal to make of Lorenzo Marques an emporium for the collection of arms and ammunition against Great Britain with whom the king of Portugal is at peace ... thereby ... enlarging the sphere of the present carnage in South Africa."[2]
[Footnote 2: London Times, Weekly Ed., Dec. 29, 1899, p. 821, col. I.]
It was alleged in England that at the beginning of the war, when the Portuguese Government believed victory certain for Great Britain and only a matter of brief hostilities, the administration at Lorenzo Marques had put a certain amount of restraint upon the extent to which the port might be used as a base of warlike supplies, but had later relaxed this proper restriction. The only remedy possible to be applied by England was the right of patrol outside the three mile limit, but the detection of forbidden forms of commerce was practically impossible. Undoubtedly not only food but munitions of war as well were brought in concealed in the holds of merchantmen and by other devices. To examine the ships properly at sea it was estimated would have required three weeks or more, and it was declared that such an examination alone could have insured Great Britain in her rights, since the bills of lading were evidently fictitious. Recruits came in on the ships in question as waiters, as sailors, as passengers, and when landed were sent on to Pretoria. With permanent offices at the Hague, Dr. Leyds, it was asserted, was the recruiting agent of the Transvaal, and was successful in sending out men from Germany, Belgium, Russia, Sweden, Holland, Ireland, and as a matter of fact from the whole of Europe as a great recruiting station.
It was this state of affairs that impelled the English Government to assume an attitude toward neutral commerce which it was found difficult to maintain against other nations whose interests were involved. The points in the British position which were most violently attacked were the classification of foodstuffs as contraband in certain cases, and the application which was made of the doctrine of "continuous voyages," not to absolute contraband of war or to goods seeking to cross the line of an established blockade, but to other classes which are usually considered free.
There seems little certainty as to the exact circumstances under which a belligerent may treat foodstuffs as contraband, although it is generally admitted that under certain conditions such goods may be so considered.
On the other hand doubt is expressed by many writers upon international law as to whether it is ever possible to treat as contraband of war such articles as are necessary for the sustenance of a people.
Contraband as is well known is generally held to consist of two kinds, first, absolute contraband such as arms, machinery for manufacturing arms, ammunition and any materials which are of direct application in naval or military armaments; second, conditional contraband, consisting of articles which are fit for but not necessarily of direct application to hostile uses.
The first class is always liable to capture and confiscation, but with regard to the second class no unanimity of opinion exists. Disputes always arise as to what articles, though not necessarily of direct applicability to hostile uses, may nevertheless be considered contraband of war. This question is especially difficult of solution with reference to foodstuffs when seized on their way to a belligerent in neutral bottoms.
The case of seizure which occurred during the war involved not only the question of foodstuffs as contraband but brought up also the applicability of the doctrine of "continuous voyages," where the article being conveyed to a belligerent by stages were goods which, except under unusual circumstances, have generally been held to be free from the taint of contraband character. Great Britain has held that provisions and liquors fit for the consumption of the enemy's naval or military forces may be treated as contraband. In the case of the seizure of "naval or victualling" stores her rule has been their purchase without condemnation in a prize court.[3]
[Footnote 3: Holland, Manual of Naval Prize Law (1888), p. 24.]
France in 1885 declared rice to be contraband when shipped from the southern to the northern ports of China, with whom she was at war. But in declaring that all cargoes so shipped were to be considered as contraband the French Government made a distinction as to their intended or probable destination and use. Great Britain protested at that time, but as no cases came before French prize courts we have no way of judging of the French declaration and its value as a precedent. But the majority of the authorities upon the principles of international law admit that foodstuffs which are destined for the use of the enemy's army or navy may be declared contraband in character. The practice of the United States, of Great Britain and of Japan has been to follow this rule. Russia in 1904 declared rice and provisions in general to be contraband. When Great Britain and the United States protested against this decision the Russian Government altered its declaration so far as to include foodstuffs as conditional contraband only. Germany has held that articles which may serve at the same time in war and peace are reputed contraband if their destination for the military or naval operations of the enemy is shown by the circumstances.
All authorities seem to agree that contraband to be treated as such must be captured in the course of direct transit to the belligerent, but the difficulty nearly always arises as to what shall be considered direct transit. One rule has been that the shipment is confiscable if bound for a hostile port, another that it is only necessary to show that the ultimate destination of the goods is hostile. The latter rule was declared to apply in the American case of the Springbok, an English merchantman conveying goods in 1863 from a neutral port to a neutral port, but, it was alleged, with the evident intention that the goods should reach by a later stage of the same voyage the belligerent forces of the Southern Confederacy, then at war with the United States.[4] In this case, however, the conclusive presumption was that the character of the goods themselves left no doubt possible as to their ultimate destination. The guilt of the vessel was not based upon the ground of carrying contraband but upon a presumption that the blockade established over the Southern States was to have been broken. Both the ship and its cargo were condemned by the district court of southern New York, but the cargo alone was later considered liable to condemnation by the Supreme Court of the United States. Great Britain at the time noted an exception to the decision, but refused to take up claims on the part of the English owners against the United States Government for indemnity. Earl Russell, in refusing the request of the owners for intervention by Great Britain, said in part: "A careful perusal ... of the judgment, containing the reasons of the judge, the authorities cited by him in support of it, and the ... evidence invoked ... goes ... to establish that the cargo of the Springbok, containing a considerable portion of contraband, was never really and bona fide destined for Nassau [the alleged destination], 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 to proceed to its real port of destination, being a blockaded port."[5]
[Footnote 4: Sessional Papers of the House of Commons, Correspondence respecting the Seizure of the British Vessels "Springbok" and "Peterhof" by United States Cruisers in 1863, Miscl. No. I (1900), C. 34]
[Footnote 5: Sessional Papers of the House of Commons, p. 39.]
This case is often cited as containing an application of the doctrine of "continuous voyages" to contraband per se. But it seems that the primary question was not one of contraband. The guilt of the ship lay rather in the intention, presumed upon the evidence, that a breach of an actual blockade was ultimately designed. The Supreme Court in reviewing the decision of the lower court said: "We do not refer to the character of the cargo for the purpose of determining whether it was liable to condemnation as contraband, but for the purpose of ascertaining its real destination; for we repeat again, contraband or not, it could not be condemned if really destined for Nassau, and not beyond, and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports are under blockade."[6] In other words, the decision was upon presumption and not upon the evidence in the case; upon the presumption that a breach of blockade was premeditated and not upon the ground that the cargo was contraband. The fact that the cargo was of a character which did not seem likely to be incorporated into the stock in trade of the Nassau population gave the judges whatever justification there was for the presumption that the goods were intended to be transshipped without breaking bulk. A recent English writer, Mr. Atherley-Jones, who criticises this decision of the Supreme Court of the United States as a verdict based upon the principle of the expediency of the moment and not upon the usual rules of evidence, admits that if a vessel sails with the intention of violating a blockade there is no question of the character of the port from which she sets out but insists that there is no necessity in such a case to apply the doctrine of "continuous voyages," If it can be proved, he says, that she is going to a blockaded port, it does not matter whether she is going to a neutral one or not, but it must be made clear that she is going to a blockaded one. He points to the fact that suspicion can never prove this apart from the ship's papers, the admission of the ship's company and the situation and course of the vessel. His view of the case is that the Supreme Court as well as the lower courts of, the United States "accepted well founded surmise as to a vessel's destination in lieu of proof," and he adds, "the danger of such a departure needs no further comment."[7]
[Footnote 6: Op. cit., p. 45.]
[Footnote 7: Commerce in War (1907), p. 255.]
The first position taken by Great Britain to support her right of seizure of foodstuffs bound for Delagoa Bay seems to have been based upon this departure of the Supreme Court of the United States in the case of the Springbok in 1863. It was found, however, that this basis of justification would not be acceptable to other Powers generally nor to the United States when the doctrine of "continuous voyages" was given such an application as practically to include foodstuffs as contraband. Without the taint of contraband there could be no justification even upon the Springbok decision as a precedent, since there was no blockaded port in question. In the seizure of American goods which were being conveyed by British ships there was the possibility of a violation of a municipal regulation which forbade British subjects to trade with the enemy.
But the charge of trading with the enemy to gain plausible ground necessarily carried with it the further presumption that the ultimate intention was that the foodstuffs should reach the Transvaal by a later stage of the same voyage.
With reference to the arrest and detention of German mail steamers bound for Delagoa Bay, the English Government found the attempt to substitute possibly well-grounded suspicions for facts no more acceptable to third Powers than the assumption with regard to foodstuffs had been, if the emphatic statements of the German Government indicate the general opinion upon the subject of the carrying of analogues of contraband and unneutral service in general.
GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL.
THE BUNDESRATH.--It was reported to the English Government by Rear Admiral Sir Robert Harris, on December 5, 1899, that the German East African mail steamer Bundesrath had sailed from Aden for Delagoa Bay. He informed his Government that ammunition was "suspected but none ascertained;" that the Bundesrath had on board "twenty Dutch and Germans and two supposed Boers, three Germans and two Australians believed to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers."[8] On the twenty-ninth of the same month the Bundesrath was taken into Durban, about three hundred miles from Lorenzo Marques, under the escort of the British cruiser Magicienne. The German Government demanded the immediate release of the steamer upon the assurance made by the Hamburg owners that she carried no contraband. Great indignation was expressed in Hamburg, and a demand was made in the Chamber of Commerce that measures be taken to insure the protection of German commercial interests. A diplomatic note was sent by Germany protesting against the action of England. Lord Salisbury's reply on the part of his Government was that the Bundesrath was suspected of carrying ammunition in her cargo, and that it was known that she had on board a number of passengers who were believed to be volunteers for service with the Boers. He added, however, that no official details had been received other than those contained in the cable announcing the fact that the ship had been captured.[9] The German consul at Durban protested against the ship's being brought in there as prize, and his Government reiterated its request that she be released at once since she carried no contraband. The detention of a mail ship, it was asserted, interfered with public interests in addition to the loss which was inflicted upon the owners of the vessel.
[Footnote 8: Sessional Papers of the House of Commons, Correspondence respecting the Action of Her Majesty's Naval Authorities with reference to Certain Foreign Vessels, Africa No. I (1900), C. 33, p. I.]
[Footnote 9: Ibid., pp. 2-3.]
Admiral Harris reported on December 31 that the Bundesrath had changed the position of her cargo on being chased, a fact which was considered suspicious; that a partial search had revealed sugar consigned to a firm at Delagoa Bay, and railway sleepers and small trucks consigned to the same place. It was expected that a further search would reveal arms among the baggage of the Germans on board who admitted that they were going to the Transvaal. England's senior naval officer at Durban was of the opinion that there was ample ground for discharging the cargo and searching it. The request was accordingly made that authority be given for throwing the ship into a prize court, and that instructions be forwarded as to the proper disposal of the passengers on board.
Despite the protest of Germany that the Bundesrath carried neither contraband nor volunteers for the Transvaal, instructions were issued that a prize court should take over the ship and a search be at once made by competent authorities. Orders were given at the same time, however, that until it became evident that the Bundesrath was carrying contraband, "other German mail steamers should not be arrested on suspicion only."[10]
[Footnote 10: Ibid., p. 4.]
Instructions were also issued by the British Government that application be made to the prize court for the release of the mails; that if they were released they were to be handed over to the German consul and to be hastened to their destination, "either by an English cruiser if available, or by a mail steamer, or otherwise."[11] It was pointed out that the ship and its cargo, including the mails, were in the custody of the court and except by the order of that tribunal should not be touched. It was urged, however, that every facility for proceeding to his destination be afforded to any passenger whom the court considered innocent.
[Footnote 11: Ibid., pp. 5-6; Chamberlain to Hely-Hutchinson, Jan. 3, 1900.]
The German consul at Durban reported that no contraband had been found on the Bundesrath although a thorough search had been made. The failure to discover goods of a contraband character apparently rendered the action of Great Britain's naval authorities unjustifiable. Germany indeed insisted that had there been contraband disclosed even this fact would not have given England any right to interfere with neutral commerce from one neutral port to another and insisted that the task of preventing the transmission of contraband to the Transvaal lay with the Portuguese Government.[12] The fact was also pointed out that when war first broke out, the steamship company owning the Bundesrath had discharged shipments of a contraband character at Dar-es-Salaam as well as at Port Said in order to obviate any possible complication, and since then had issued strict orders that contraband should not be embarked.
[Footnote 12: Ibid., p. 7; Lascelles to Salisbury, Jan. 5, 1900.]
Great Britain expressed herself as "entirely unable to accede to ... the contention that a neutral vessel was entitled to convey without hindrance contraband of war to the enemy, so long as the port at which she intended to land it was a neutral port."[13] The novel suggestion was made by Germany that "the mail steamer be allowed to go on bail so as not to interfere more than was necessary with her voyage," but the English representative doubted the practicability of such a plan. He was in favor of the suggestion if it could be adopted under suitable conditions, but since the ship had probably gone into the hands of the prize court, that tribunal, he said, would have to act independently.
[Footnote 13: Ibid., p. 7; Salisbury to Lascelles, Jan. 4, 1900.]
On January 5 the mails and the passengers were released by order of the court and were taken on board the German warship, Condor, for Delagoa Bay. But not until two weeks later were the ship and its cargo released.[14] The only reason assigned by the court for the release was that no contraband had been discovered by the search.
[Footnote 14: Ibid., p. 22; Hely-Hutchinson to Chamberlain, Jan. 18, 1900.]
Since the three cases which attracted most attention, the Bundesrath, the Herzog, and the General, with a few unimportant exceptions as to details, were similar in regard to the points of law involved, the facts in the remaining cases will be outlined. It will then be possible to discuss the grounds upon which Great Britain asserted the right of seizure, and the objections which Germany made to the English assertion.
THE HERZOG.--On December 16, 1899, a cable from the commander-in-chief of the Mediterranean station announced to the British Foreign Office that the German "steamship" Herzog had left the Suez Canal on the twelfth for South Africa carrying "a considerable number of male passengers, many in khaki, apparently soldiers" although "no troops were declared." On the same day an inquiry was made by the commander at the Cape whether "a number of passengers dressed in khaki" could be "legally removed" from the Herzog.[15] On the twenty-first the senior naval officer at Aden reported that the Herzog had sailed on the eighteenth for Delagoa Bay conveying, "probably for service in the Transvaal, about forty Dutch and German medical and other officers and nurses."[16] Although instructions had been issued on the first of January that neither the Herzog nor any other German mail steamer should be arrested "on suspicion only" until it became evident that the Bundesrath, which was then being searched, really carried contraband, the Herzog was taken into Durban as prize on the sixth by the British ship Thetis.
[Footnote 15: Ibid. p. 1; Admiralty to Foreign Office, Nos. 1 and 2.]
[Footnote 16: Ibid., pp. 2, 4, II.]
The consul at Durban as well as the commander of the German man-of-war Condor protested in the name of their Government against the seizure of the Herzog. They urged that the vessel be allowed to proceed since her captain had given the assurance that there were no contraband goods on board; that the only suspected articles were the mails, and certain small iron rails and railway sleepers which were destined for the neutral port of Delagoa Bay. On board the Herzog, however, there were three Red Cross expeditions, one of which had no official connection with the legitimate Red Cross societies. It had no official character but had been organized by a committee, the "Hilfs Ausshuss fuer Transvaal in Antwerp."[17] The other Red Cross expeditions were legitimate, one being German and the other Dutch.
[Footnote 17: Ibid., p. 16.]
On the seventh instructions were issued that the Herzog be released at once, unless guns or ammunition were revealed by a summary search. But on the following day the order was added that proceedings might be discontinued and the ship released unless "provisions on board are destined for the enemy's Government or agents, and are also for the supply of troops or are especially adapted for use as rations for troops."[18] On the ninth the Herzog was released, arrangements having been made two days before for the passage of one of the passengers, the Portuguese Governor of Zambesi, to Delagoa Bay by the Harlech Castle.
[Footnote 18: Ibid., pp. 14, 16.]
THE GENERAL.--On the fourth of January the senior naval officer at Aden had reported to the English admiralty that the German vessel General, another East African mail steamer, was under detention there upon strong suspicion and was being searched.[19] The German Government at once entered a strong protest and demanded in rather brusque terms "that orders be given for the immediate release of the steamer and her cargo, for that portion of her cargo which has already been landed to be taken on board again, and for no hindrances to be placed in the way of the ship continuing her voyage to the places mentioned in her itinerary." Count Hatzfelt, the German representative in London, continued: "I am further instructed to request your Excellency [the Marquis of Salisbury] to cause explicit instructions to be sent to the Commanders of British ships in African waters to respect the rules of international law, and to place no further impediments in the way of the trade between neutrals."[20]
[Footnote 19: Ibid., p. 6.]
[Footnote 20: Ibid., p. 8.]
To the form and imputations of this request the British Government took exception, and the situation appeared ominous for a time. Instructions had been issued, however, that unless the General disclosed contraband after a summary search it was undesirable to detain the ship since she carried the mails. The report of the naval officer at Aden disclosed the fact that he had boarded and detained the ship at that place. The ground for his action was that he had been informed that a number of suspicious articles were on board for Delagoa Bay, including boxes of ammunition stowed in the main hold, buried under reserve coal. An inspection of the manifest had shown several cases of rifle ammunition for Mauser, Mannlicher and sporting rifles consigned to Mombasa, but this consignment was believed to be bona fide. Other suspected articles on the manifest were wagon axles and chemicals and at the bottom of the hold was a consignment of food for Delagoa Bay, with boilers and heavy machinery stowed on top of the reserve coal. The General carried besides a number of Flemish and German passengers for Delagoa Bay, in plain clothes but of "military appearance," some of whom were believed to be trained artillerymen. It was suggested that this last doubt could be cleared up only by a search of the private baggage of the persons suspected, but it was not considered by the British Foreign Office that there was "sufficient evidence as to their destination to justify further action on the part of the officers conducting the search."[21]
[Footnote 21: Ibid., p. 22; see also pp. 10, 17, 21.]
On the seventh the General was released, but was not able to sail until the tenth, a delay due to the labor of restowing her cargo, which was done as quickly as possible. The crew of the English ship Marathon, assisted by one hundred coolies, having worked day and night after the arrival of the ship on the fourth, completed the search on the sixth but were unable to complete the restowal until the morning of the tenth.
THE JUDICIAL ASPECTS OF THE SEIZURES.
In the discussion which occurred during the detention, and which was continued after the release of the three German ships, the assertions made by the British and German Governments brought out the fact that English practice is often opposed to Continental opinion in questions of international law.
On the fourth of January the German Ambassador in London had declared that his Government, "after carefully examining the matter" of the seizure of the Bundesrath, and considering the judicial aspects of the case, was "of the opinion that proceedings before a Prize Court were not justified."[22] This view of the case, he declared, was based on the consideration that "proceedings before a Prize Court are only justified 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 recognized principles of international law, there cannot be contraband of war in trade between neutral ports."
[Footnote 22: Sessional Papers, Africa, No. I (1900), C. 33, p. 6; Hatzfelt to Salisbury, Jan. 4, 1900.]
He asserted that this view was taken by the English Government in the case of the Springbok in 1863 as opposed to the decision of the Supreme Court of the United States sitting as a prize court on an appeal from the lower district court of the State of New York.[23] The protest of the British Government against the decision of the United States court as contravening these recognized principles, he said, was put on record in the Manual of Naval Prize Law published by the English Admiralty in 1866, three years after the original protest. The passage cited from the manual read: "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." In view of this declaration on the part of Great Britain toward neutral commerce Count Hatzfeldt contended that his Government was "fully justified in claiming the release of the Bundesrath without investigation by a Prize Court, and that all the more because, since the ship is a mail-steamer with a fixed itinerary, she could not discharge her cargo at any other port than the neutral port of destination."[24]
[Footnote 23: This case, it will be remembered, was not decided on the ground of the contraband character of the goods in the cargo but because of the presumption that the ultimate intention of the ship was to break the blockade established over the Southern States. This well founded suspicion, based upon the character of the cargo as tending to show that it could be intended only for the forces of the Southern Confederacy, led to the conclusion that a breach of blockade was premeditated. This presumption no doubt was correct and in this particular case the decision of the court was probably justified, but the course of reasoning by which the conclusion was reached was generally considered a dangerous innovation in international relations. It has been recently again asserted that the decision was not based upon the accepted rules of evidence. Supra p. 24. For a clear statement of the latter view, see Atherley-Jones, Commerce in War, p. 255.]
[Footnote 24: Sessional Papers, Africa, No. I (1900), C. 33, p. 6; Hatzfeldt to Salisbury, Jan. 4, 1900.]
In his reply to the German note Lord Salisbury thought it desirable, before examining the doctrine put forward, to remove certain "errors of fact in regard to the authorities" cited. He emphatically declared that the British Government had not in 1863 "raised any claim or contention against the Judgment of the United States' Prize Court in the case of the Springbok" And he continued: "On the first seizure of that vessel, and on an ex parte and imperfect statement of the fact by the owners, Earl Russell, then Secretary of State for Foreign Affairs, informed Her Majesty's Minister at Washington that there did not appear to be any justification for the seizure of the vessel and her cargo, that the supposed reason, namely, that there were articles in the manifest not accounted for by the captain, certainly did not warrant the seizure, more especially as 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." He asserted that the real contention advanced in the plea of the owners for the intervention of the British Government had been that "the goods [on board the Springbok] were, in fact, bona fide consigned to a neutral at Nassau;" but that this plea had been refused by the British Government without "any diplomatic protest or ... any objection against the decision ... nor did they ever express any dissent from that decision on the grounds on which it was based."[25]
[Footnote 25: Ibid., p. 18; Salisbury to Lascelles, Jan. 10, 1900.]
This assertion is fairly based upon the reply of the English Government to the owners on February 20, 1864. Earl Russell had expressly declared that his government could not interfere officially. "On the contrary," he said, "a careful perusal of the elaborate and able Judgment, containing the reasons of the Judge, the authorities cited by him in support of it, and the important evidence properly invoked from the cases of the Stephen Hart and Gertrude (which her majesty's government have now seen for the first time) in which the same parties were concerned," had convinced his Government that the decision was justifiable under the circumstances.[26] The fact was pointed out that the evidence had gone "so far to establish 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 transhipped 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."[27] The "complicity of the owners of the ship, with the design of the owners of the cargo," was "so probable on the evidence" that, in the opinion of the law advisers of the Crown, "there would be great difficulty in contending that this ship and cargo had not been rightly condemned." The only recourse of the owners was consequently the "usual and proper remedy of an appeal" before the United States Courts.
[Footnote 26: Sessional Papers, Miscl., No. I (1900), C. 34, pp. 39-40; Russell to Lyons, Feb. 20, 1864.]
[Footnote 27: Ibid. Italics our own.]
The next point that Count Hatzfeldt made was not so squarely met by Lord Salisbury, namely, that the manual of the English Admiralty of 1866 expressly declared: "A vessel's destination shall be considered neutral, if both the point to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral." And again, "The destination is conclusive as to the destination of the goods on board." Count Hatzfeldt contended that upon this principle, admitted by Great Britain herself, Germany was fully justified in claiming the release of the ship without adjudication since she was a mail-steamer with a fixed itinerary and consequently could not discharge her cargo at any other port than the neutral port of destination.[28]
[Footnote 28: Sessional Papers, Africa, No. I (1900), C. 33, p. 6.]
The only reply that Lord Salisbury could make was that the manual cited was only a general statement of the principles by which British officers were to be guided in the exercise of their duties, but that it had never been asserted and could not be admitted to be an exhaustive or authoritative statement of the views of the British Government. He further contended that the preface stated that it did not treat of questions which would ultimately have to be settled by English prize courts. The assertion was then made that while the directions of the manual were sufficient for practical purposes in the case of wars such as had been waged by Great Britain in the past, they were quite inapplicable to the case which had arisen of war with an inland State whose only communication with the sea was over a few miles of railway to a neutral port. The opinion of the British Government was that the passage cited to the effect "that the destination of the vessel is conclusive as to the destination of the goods on board" had no application. "It cannot apply to contraband of war on board 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."[29]
[Footnote 29: Ibid., pp. 18-19. Salisbury to Lascelles, Jan. 10, 1900.]
Lord Salisbury then cited Bluntschli as stating what in the opinion of the British Government was the correct view in regard to goods captured under such circumstances: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war and confiscation will be justified."[30] And, basing his argument upon this authority, he insisted that his Government could not admit that there was sufficient reason 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 Republic." It was admitted, however, that the British Government fully recognized how desirable it was that the 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 all merchandise on board of her."[31] It was intimated that explicit instructions had been issued for this purpose and that arrangements had been made for the speedy transmission of the mails.
[Footnote 30: "Si les navires ou marchandises ne sont expedies a destination d'un port neutre que pour mieux venir en aide a l'ennemi, il y aura contrebande de guerre, et la confiscation sera justifiee." Droit Int. Codifie, French translation by Lardy, 1880, 3d Ed., Sec. 813. One of the two cases cited in support of this opinion is that of the Springbok, but in Sec.835, Rem. 5, the following statement is made: "Une theorie fort dangereuse a ete formule par le juge Chase: 'Lorsqu'un port bloque est le lieu de destination du navire, le neutre doit etre condamne, meme lorsqu'il se rend prealablement dans un port neutre, peu importe qu'il ait ou non de la contrebande de guerre a bord.'"]
[Footnote 31: Sessional Papers, Africa, No. I (1900), C. 33, p. 19; Salisbury to Lascelles, Jan. 10, 1900.]
The German Government, agreeing for the moment to put to one side the disputed question of trade between neutral ports in general, nevertheless insisted that since a preliminary search of the Bundesrath had not disclosed contraband of war on board there was no justification for delivering the vessel to a prize court. The suggestion was made that future difficulty might be avoided by an agreement upon a parallel of latitude down to which all ships should be exempt from search. And although it was not found possible to reach an exact agreement upon this point, orders were issued by Great Britain that the right of search should not in future be exercised at Aden or at any place at an equal distance from the seat of war and that no mail steamers should be arrested on suspicion alone. Only mail steamers of subsidized lines were to be included, but in all cases of steamers carrying the mails the right of search was to be exercised with all possible consideration and only resorted to when the circumstances were clearly such as to justify the gravest suspicion.[32]
[Footnote 32: Ibid., pp. 19-22.]
It is interesting to note in the positions taken by the German and English Governments with regard to the theory of ultimate destination and continuous voyages a wide divergence of opinion. The British Government apparently based its contention upon the decision of the United States Supreme Court in the case of the Springbok in 1863, namely, that a continuous voyage may be presumed from an intended ultimate hostile destination in the case of a breach of blockade, the contraband character of the goods only tending to show the ultimate hostile intention of the ship. But the English contention went further than this and attempted to apply the doctrine to contraband goods ultimately intended for the enemy or the enemy's country by way of a neutral port which, however, was not and could not be blockaded. The German Government contended on the other hand that this position was not tenable and apparently repudiated the extension of the continuous voyage doctrine as attempted by England.
In the end the immediate dispute was settled upon the following principles: (1) The British Government admitted, in principle at any rate, the obligation to make compensation for the loss incurred by the owners of the ships which had been detained, and expressed a readiness to arbitrate claims which could not be arranged by other methods. (2) Instructions were issued that vessels should not be stopped and searched at Aden or at any point equally or more distant from the seat of war. (3) It was agreed provisionally, till another arrangement should be reached, that German mail steamers should not be searched in future on suspicion only. This agreement was obviously a mere arrangement dictated by the necessity of the moment, and was not such as would settle the question of the extent to which the doctrine of continuous voyages might be extended in dealing with contraband trade or with alleged traffic of this character.
Count Von Buelow, the German Chancellor, speaking before the Reichstag with reference to the seizures of the German mail steamers said: "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 met with universal recognition in theory and practice."[33]
[Footnote 33: Sessional Papers, Africa, No. I (1900), C 33; p. 25, Jan. 19, 1900. Italics our own.]
Summing up what in the opinion of the German Government corresponded most closely with the general opinion of the civilized world, the Chancellor then declared: "We recognize the rights which the Law of Nations actually concedes to belligerents with regard to neutral vessels and neutral trade and traffic. We do not ignore the duties imposed by a state of war upon the ship owners, merchants, and vessels of a neutral state, but we require of the belligerents that they shall not extend the powers they possess in this respect beyond the strict necessities of war. We demand of the belligerents that they shall respect the inalienable rights of legitimate neutral commerce, and we require above all things that the right of search and of the eventual capture of neutral ships and goods shall be exercised by the belligerents in a manner conformable to the maintenance of neutral commerce, and of the relations of neutrality existing between friendly and civilized nations."[34]
[Footnote 34: Ibid., p. 25.]
This doctrine, namely, that "for ships consigned from neutral states to a neutral port, the notion of contraband simply does not exist," clearly defined the contention of Great Britain that contraband which "at the time of seizure" was "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," is liable to seizure and that both ship and cargo may be confiscated.[35] It also denied the English contention that "provisions on board ... destined for the enemy's Government or agents, and ... also for the supply of troops or ... especially adapted for use as rations for troops" may be seized as contraband.[36]
[Footnote 35: Ibid., p. 19; Salisbury to Lascelles, Jan. 10, 1900.]
[Footnote 36: Ibid., p. 16; Admiralty to Harris, Jan. 8, 1900.]
Count Von Buelow summarized the action of the German Government by saying: "We demanded in the first place the release of the steamers.... In the second place we demanded the payment of compensation for the unjustified detention of our ships and for the losses incurred by the German subjects whose interests were involved.... Thirdly, we drew attention to the necessity for issuing instructions to the British Naval Commanders to molest no German merchantmen in places not in the vicinity of the seat of war, or at any rate, in places north of Aden.... Fourthly, we stated it to be highly desirable that the English Government should instruct their Commanders not to arrest steamers flying the German mail flag.... Fifthly, we proposed that all points in dispute should be submitted to arbitration.... Lastly, the English Government have given expression to their regret for what has occurred. We cherish the hope that such regrettable incidents will not be repeated. We trust that the English naval authorities will not again proceed without sufficient cause, in an unfriendly and precipitate manner against our ships."[37]
[Footnote 37: Speech in Reichstag, Jan. 19, 1900.]
The Chancellor at the same time set forth certain general propositions as a tentative system of law to be operative in practice, a disregard of which in the opinion of the German Government would 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 ...are subject to the right of visit by the warships of the belligerent parties." It was pointed out that this was apart from the right of convoy, a question which did not arise in the cases under discussion. The proposal was not intended to apply to waters which were too remote from the seat of war and a special agreement was advocated for mail ships.
"(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 two first acts may be undertaken at any time, and without 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," it was intimated, "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 neutrals in a regular manner what articles it intends to treat as contraband and had met with no opposition.
"(5) Discovered contraband is liable to confiscation; whether with or without compensation depends upon 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 the ship and cargo and
to pay full compensation."
It was the view of the German Government according to these principles, and in view of the recognized practice of nations, that it would not have been possible to lodge a protest against the stopping on the high seas of the three German steamers or to protest against the examination of their papers. But by the same standard, it was contended that the act of seizing and conveying to Durban the Bundesrath and the Herzog, and the act of discharging the cargoes of the Bundesrath and General, were both undertaken upon insufficiently founded suspicion and did not appear to have been justified.
The end of the discussion between Great Britain and Germany left the somewhat uncertain doctrine of continuous voyages still unsettled. As applied in 1863 distinctly to a breach of blockade it was generally considered an innovation. As applied, or attempted to be applied, by Great Britain in 1900 to trade between neutral ports at a time when no blockade existed or was in fact possible, it failed to receive the acquiescence of other nations who were interested. The discussion, however, rendered, apparent a clear line of cleavage between English practice and Continental opinion.
Mr. Lawrence characterizes as "crude" the doctrine of the German Chancellor, that neutral ships plying between neutral ports are not liable to interference; that, in order for the ship to be legitimately seized, there must be contraband on board, that is, goods bound for a belligerent destination, and that this could not occur where the destination was a neutral port and the point of departure a neutral port. He declares that if this doctrine were accepted the offense of carrying contraband "might be expunged from the international code;" that "nothing would be easier for neutrals than to supply a belligerent with all he needed for the prosecution of his war."[38] He points out the danger of the acceptance on the part of the Powers of such a doctrine by citing the hypothetical case of France engaged in war, and asserts that under such circumstances even arms and ammunition might be poured into the neutral port of Antwerp and carried by land to the French arsenals. If Germany should be at war, munitions of war might be run in with practically no hindrance through the neutral harbors of Jutland. If Italy were at war, Nice or Trieste might be used in the same manner for the Italian Government to secure arms and ammunition.
[Footnote 38: Principles of Int. Law, 3d Ed., p. 679.]
Possibly Mr. Lawrence does not do full justice to the points taken by the German Government as enunciated in the speech of Count Von Buelow, although he clearly indicates what he thinks the general tendency of the proposed German system of law would be. It would seem that he does not give a clear statement of the German doctrine. When he asserts that "Count Von Buelow committed himself to the crude doctrine that neutral ships plying between neutral ports would not be liable to interference," the inference is not a necessary result of the German position. Nor does it necessarily follow according to the German standard that, "to constitute the offense of carrying contraband a belligerent destination" is "essential, and therefore there" can "be no contraband when the voyage" is "from neutral port to neutral port,"[39] Mr. Lawrence possibly has reference only to the position taken arguendo by the German Government during the correspondence immediately following the seizure of the German ships and not to the general rules formulated by the German Chancellor on January 19, 1900, in his speech before the Reichstag.[40] There is no indication that Mr. Lawrence had this speech before him when he passed judgment upon the German doctrine, although the preface to the third edition of his Principles of International Law is dated August 1, 1900.
[Footnote 39: Principles of Int. Law, p. 679.]
[Footnote 40: The German argument was that according to English expression in the past, notably in 1863, and expressly in her own naval guide, there could not be contraband of war between neutral ports.]
It is possibly true that the German rules were advanced because of their expediency in view of the geographical position of Germany. But the English writer apparently admits a similar motive in opposing the proposed German system, when he says, "Great Britain is the only European state which could not obtain," in time of war, "all the supplies she wished for by land carriage from neighboring neutral ports, with which according to the doctrine in question, neutrals would be free to trade in contraband without the slightest hindrance from the other belligerent."[41]
[Footnote 41: Principles of Int. Law, p. 680.]
The view taken by Mr. Lawrence would seem unfair to the proposed rules in a number of points. Count Von Buelow clearly pointed out that belligerent vessels might capture a neutral vessel if the latter resisted the order to stop, or if irregularities were discovered in her papers, or if the presence of contraband were revealed. Under the term "contraband of war" he admitted that articles and persons suited for war might be included, provided they were at the same time destined for the use of one of the belligerents, and he was ready to admit that discovered contraband should be confiscable. It is true the caution was added that should the seizure prove to be unjustifiable the belligerent State should be bound to order immediate release and make full compensation, and that the right of visit and search should be exercised with as much consideration as possible and without undue molestation to neutral commerce. It was understood that neutral merchant vessels on the high seas or in the territorial waters of the belligerent powers should be liable to visit and search, but again with the necessary caution that the right should not be exercised in waters too remote from the seat of war, and that additional consideration be conceded to mail steamers.[42]
[Footnote 42: Sessional Papers, Africa, No. I (1900), C. 33, p. 24. Speech in Reichstag, Jan. 19, 1900.]
There would seem to be no necessary opposition between the German position in 1900 and that taken by the Supreme Court of the United States in 1863 with reference to the ships Springbok and Peterhof. In the latter case the cargo of the ship was condemned on the ground that the goods, not necessarily contraband in character, were being carried into the neutral Mexican port of Matamoras. It was believed, however, that the goods were not intended to be sold there as a matter of trade, but were destined for the use of the forces of the Southern Confederacy across the Rio Grande River. To these belligerent forces it was presumed the goods were to be conveyed as the final stage of their voyage, but the decision of the court was distinctly upon the guilt of a breach of blockade.[43] The character of the goods did not give just ground for seizure provided they were intended in good faith for a neutral market, but the character of the goods showed that they were not so intended, and the simulated papers of the ship substantiated this suspicion. But it is to be repeated, condemnation was declared upon the ground of an intended breach of an established blockade as the final stage of the voyage. Had there been no blockade of the Southern States these decisions could not have been upheld. No contraband of war was possible between the neutral ports in the course of bona fide neutral trade, but the character of the goods and the dishonest character of the ships made possible the conclusive presumption that the goods were ultimately intended for the blockaded enemy.
[Footnote 43: Sessional Papers, Miscl., No. I (1900), C. 34, p. 60.]
In the seizure of the German ships, on the other hand, the British Government was not able to show that the ships were really carrying contraband or that there was any irregularity in their papers. The protest of the German Government and its later announcement of certain rules which should govern such cases merely cautioned Great Britain against an undue exercise of the recognized right of visit and search. The attempt was not made to lay down a new system of principles which would render the carrying of contraband by neutrals unhampered by the belligerents, for Count Von Buelow in setting forth the tentative system which in the opinion of his Government would protect neutral commerce in time of war laid stress upon the fact that there are as yet no legal principles fixed and binding on all the maritime Powers, respecting the rights of neutrals to trade with a belligerent, or the rights of belligerents in respect to neutral commerce. He pointed out that, although proposals had been repeatedly made to regulate this subject all attempts had failed owing to the obstacles created by the conflicting views of the different Powers.
The Peace Conference at the Hague has in fact expressed the wish that an international conference might regulate, on the one hand, the rights and duties of neutrals, and on the other, the question of private property at sea. The German Chancellor intimated that his Government would support any plan of the kind for more clearly defining the disputed points of maritime law. The fact was pointed out that maritime law is still in a "liquid, elastic, and imperfect state," that with many gaps which are only too frequently apt to be supplemented by armed force at critical junctures, this body of law opens the way for the criticism that "the standard of might has not as yet been superseded by the standard of right."
The Institute of International Law which met at Venice in 1896 declared that the destination of contraband goods to an enemy may be shown even when the vessel which carries them is bound to a neutral port. But it was considered necessary to add the caution that "evident and incontestable proof" must make clear the fact that the goods, contraband in character, were to be taken on from the neutral port to the enemy, as the final stage of the same commercial transaction.
This latter condition the English Government failed to fulfil in the cases of the Bundesrath, Herzog and General, and it was this failure which gave just ground for Germany's protests. Great Britain not only failed to show by "evident and incontestable proof" that the German ships carried actual contraband, but she failed to show that there were on board what have been called "analogues" of contraband. The point was emphasized indeed that while special consideration would be shown to all German mail steamers, not every steamer which "carried a bag of letters" could claim this partial immunity. The English representative said: "We understand by mail steamers, steamers of subsidized lines, and consequently owned by persons whom the German Government consider as respectable."[44] And in this intimation he merely voiced the suspicion in England that with or without the knowledge of the Government the German ships had been guilty of unneutral service, which the more recent authorities on international law distinguished from the carrying of contraband.
[Footnote 44: Sessional Papers, Africa, No. I (1900), C. 33, p. 21; Salisbury to Lascelles, Jan. 16, 1900.]
It is generally agreed that neutral mail steamers and other vessels carrying the mails by agreement with neutral governments have in certain respects a peculiar position. Their owners and captains cannot be held responsible for the nature of the numerous communications they carry. It is equally well understood that a neutral may not transmit signals or messages for a belligerent, nor carry enemy's despatches, nor transport certain classes of persons in the service of a belligerent. But mail steamers may carry persons who pay for their passage in the usual way and come on board as ordinary passengers, even though they turn out to be officers of one or the other of the belligerents. Although the tendency of modern times to exempt mail ships from visit and search and from capture and condemnation is not an assured restriction upon belligerent interests, it is a right which neutrals are entitled to demand within certain well-defined limits. It was understood when this immunity was granted by the United States in 1862 that "simulated mails verified by forged certificates and counterfeit seals" were not to be protected.[45]
[Footnote 45: Wheaton, International Law, Dana's Ed., p. 659, note.]
During the controversy between the English and German Governments with reference to the seizure of the three German ships, Professor T.E. Holland, the editor of the British Admiralty Manual of Prize Law of 1888, declared: "The carriage by a neutral ship of troops, or of even a few military officers, as also of enemy despatches, is an enemy service of so important a kind as to involve the confiscation of the vessel concerned, a penalty which under ordinary circumstances, is not imposed upon the carriage of contraband property so called."[46] Under this head if would seem the alleged offense of the ship Bundesrath may properly be classed, and charges of a similar character were made against the ships General and Herzog. It was suspected that persons on board variously described as of a military appearance were on their way to the Transvaal to enlist. The suspicion, however, could not be proved, and the result was that the ships were released without guilt upon the charge of unneutral service or upon that of carrying contraband goods in the usual sense of the term contraband.
[Footnote 46: International Law Situations, Naval War College, 1900, p. 98. Also Arguments of Lord Stowell in the case of the Orozembo, 6 Rob. 430; and the Atlanta, 6 Rob. 440.]
In connection with the attitude of Great Britain in regard to the doctrine of continuous voyages as applied to both goods and persons bound for Delagoa Bay, it is interesting to note the view expressed by a leading English authority upon international law with reference to the seizure of the ship Gaelic by the Japanese Government during the Chino-Japanese War. The Gaelic, a British mail steamer, was bound from the neutral port of San Francisco for the British port of Hongkong. Information had reached Japan that there were on board persons seeking service with the Chinese Government and carrying a certain kind of material intended to destroy Japanese ships.
Japan arrested the ship at Yokohama and had her searched. The suspected individuals, it was discovered, had escaped and taken the French mail-ship Sidney from Yokohama to Shanghai. Nevertheless the search was continued by the Japanese authorities in the hope of finding contraband. The British Government protested, and this protest is especially significant in view of the English contention in the cases of the German mail steamers. The protest against the further detention and search of the Gaelic was made on the ground that the ship did not have a hostile destination, Sagasaki, a port in Japanese territory, being the only port of call between Yokohama and Hongkong. It was shown by the Japanese that ships of the company to which the Gaelic belonged often called at Amoy, China, a belligerent port, but sufficient proof was not advanced to show that there was any intention to touch there on the voyage in question.[47]
[Footnote 47: Takahashi, Int. Law during the Chino-Japanese War, pp. xvii-xxvii. Note on Continuous Voyages and Contraband of War by J. Westlake; also L.Q. Rev., Vol. 15, p. 24.]
The British assertion that the neutral destination of the ship precluded the possibility of a search being made, and that it was immaterial whether anything on board had a hostile destination ulterior to that of the ship, appears rather surprising when it is seen to be almost the opposite of the position taken in the seizures of ships bound for Delagoa Bay in Portuguese territory. Japan on the other hand maintained that the proceedings were entirely correct on the ground: (1) of the probability that the Gaelic might call at Amoy; (2) that the doctrine of continuous voyages was applicable in connection with contraband persons or goods if they were destined for the Chinese Government even by way of Hongkong. This it will be remembered was practically the view taken by Great Britain in the German seizures, though strenuously opposed in this incident.
Professor Westlake, commenting upon the case of the Gaelic, states the English view of the doctrine of continuous voyages as affecting: (1) goods which are contraband of war and (2) persons who are contraband of war, or analogues of contraband. Goods, he says, may be consigned to purchasers in a neutral port, or to agents who are to offer them for sale there, and in either case what further becomes of them will depend on the consignee purchasers or on the purchasers from the agents. He contends that "such goods before arriving at the neutral port have only a neutral destination; on arriving there they are imported into the stock of the country, and if they ultimately find their way to a belligerent army or navy it will be in consequence of a new destination given them, and this notwithstanding that the neutral port may be a well-known market for the belligerent in question to seek supplies in, and that the goods may notoriously have been attracted to it by the existence of such a market."[48]
[Footnote 48: L.Q. Rev., Vol. 15, p. 25.]
It is obvious that this was the position taken by Germany and other nations with reference to the interference with neutral commerce bound for Delagoa Bay. Professor Westlake continues in regard to the Japanese incident: "The consignors of the goods may have had an expectation that they would reach the belligerent but not an intention to that effect, for a person can form an intention only about his own acts and a belligerent destination was to be impressed on the goods, if at all, by other persons." Thus it is agreed, he says, "that the goods though of the nature of contraband of war, and the ship knowingly carrying them, are not subject to capture during the voyage to the neutral port"[49]
[Footnote 49: L.Q.R., Vol. 15, p. 25. Italics our own.]
The German Government could not have based its protest against the seizure of German mail steamers upon a stronger argument for the correctness of its position than upon this view expressing the English Government's attitude toward neutral commerce at the time of the seizure of the Gaelic. Professor Westlake points out, however, that goods on board a ship destined for a neutral port may be under orders from her owners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship or by transshipment, or even by land carriage. He shows that such goods are to reach the belligerent "without the intervention of a new commercial transaction in pursuance of the intention formed with regard to them by the persons who are their owners during the voyage to the neutral port. Therefore even during that voyage they have a belligerent destination, although the ship which carries them may have a neutral one."[50] In such a case, he declares, by the doctrine of continuous voyages, "the goods and the knowingly guilty ship are capturable during that voyage." In a word, "goods are contraband of war when an enemy destination is combined with the necessary character of the goods." And it is pointed out that "the offense of carrying contraband of war" in view of the doctrine of continuous voyages is committed by a ship "which is knowingly engaged in any part of the carriage of the goods to their belligerent destination."[51]
[Footnote 50: Ibid., p. 25.]
[Footnote 51: L.Q.R., Vol. 15, p. 26.]
It is shown that even if the doctrine of continuous voyages is denied as having any validity, it may still be held that "the goods and the knowingly guilty ship are liable before reaching the neutral port if that port is only to be a port of call, the ultimate destination of the ship as well as of the goods being a belligerent one."[52] But if the doctrine of continuous voyages is denied it may also be questioned "that a further intended carriage by transshipment or by land can be united with the voyage to the neutral port so as to form one carriage to a belligerent destination, and make the goods and the knowingly guilty ship liable during the first part" of the voyage.[53] In other words, a belligerent destination both of the goods and of the ship carrying them would be required.
[Footnote 52: Ibid., p. 26.]
[Footnote 53: Ibid., p. 26.]
In regard to the doctrine of continuous voyages as applied to persons, Professor Westlake says, in speaking of the Gaelic, "When a person whose character would stamp him as contraband, or an analogue of contraband, is a passenger on board a ship bound for a neutral port, and having no ulterior destination, but intends on arriving there to proceed to a belligerent port, there is no closer connection between the two parts of his journey than that he should hold a through ticket to the belligerent port." It is pointed out that the distinction between a person when considered as contraband and goods or despatches is that "the person cannot be forwarded like a thing." Thus in the case of a person holding a through ticket, the ticket is merely a facility, but it must depend upon the person whether he will use it, and consequently, where the passenger is booked only to a neutral port, he "cannot constructively be considered as bound for a belligerent destination until he is actually bound for one."[54]
[Footnote 54: Ibid., p. 29. Italics our own.]
Upon Professor Westlake's reasoning the whole contention of the English Government in arresting passengers upon German mail steamers bound for Delagoa Bay falls to the ground, for he continues: "There must for such a destination be a determination of his own which during the first part of his journey inevitably remains contingent and which is therefore analogous to the new determination which may be given in the neutral port as to the employment of goods which have found a market there." Consequently he says: "The doctrine of continuous voyages cannot be applied to the carriage of persons.... A neutral destination of the ship is conclusive in the case of passengers taken on board in the regular course."[55] Accordingly, Professor Westlake reaches the conclusion that the search of the Gaelic was unjustifiable under the right of belligerents against neutrals on the high seas.[56]
[Footnote 55: L.Q.R, p. 32.]
[Footnote 56: He held, however, that the search was justifiable as an exercise of the police power of Japan within her own territorial waters.]
The application which Great Britain attempted to make of the doctrine of continuous voyages proved unsuccessful both with reference to contraband for neutral ports and the carrying of analogues of contraband by German mail steamers bound for Delagoa Bay. In the end the British Government paid to the German East African Line owning the Bundesrath, Herzog and General, £20,000 sterling, together with an additional sum of £5,000 as compensation to the consignees. For the detention of the ship Hans Wagner, a German sailing boat which had been arrested on February 6, 1900, the sum of £4,437 sterling was paid. The allegation in this case was that of carrying contraband, but the ship was finally released without the cargo being examined, a fact which indicates that in this, the last of the German vessels to be seized, Great Britain realized the futility of attempting to interfere with commerce between neutral ports.
The recommendations for the adjustment of the difficulty in the several cases were made by a commission of five members, two of whom were Germans, and the awards gave general satisfaction in Germany. The East African Line congratulated Count Von Buelow upon the energetic manner in which he had handled the incidents. German commercial interests considered that they might count upon the effective support of the Government, and that the result was a complete justification of the attitude which Germany had assumed with regard to the conflicting interests of belligerents and neutrals.
