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.
