after the establishment of the blockade to neutral vessels to load and to depart. Practice has varied in later wars. The usual penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent shipper, it has been held that the cargo may be released.1 The same action may be taken as to innocent cargo if a vessel deviates from her original destination to a blockaded port. The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court. 144. Continuous Voyages (a) The rule of war of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners History. in time of peace. Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic ships. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the belligerents of a part of the burdens of war which the interruption of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace. Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdiction, touched at a port within neutral jurisdiction, and in some cases landed and reshipped their cargoes. Lord Stowell decided that it was a settled principle " that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate Appendix, p. xcv. port." 1 In the case of the William in 1806, Sir William Grant declared that “the truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect."2 The English authorities held that the visit to a neutral port did not constitute the trip two voyages, but that the voyage was continuous and the property liable to confiscation, though Hall says the " cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country." 193 British cruisers, however, seized three German vessels, the Herzog, the Bundesrath, and the General, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lorenço Marquez, which was the natural port of entry for Pretoria, the capital of the South African Republic. Germany protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had passed beyond Aden, or any other place at the same distance from Delagoa Bay. Case of the The American doctrine of continuous voyages was a considerable extension of the English doctrine and Bermuda. during Civil War met with severe criticism. In the case of the Bermuda, captured during the Civil War of 1861-1865, it was held that: "Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade; and such destination justifies equally seizure of contraband in voyage to ports not under blockade; but in the last case the ship, and cargo, not 1 The Maria, 5 C. Rob., 365, 368. 25 C. Rob., 385, 396. Hall, p. 719. contraband, are free from seizure, except in cases of fraud or bad faith." 1 In the case of the Stephen Hart, a British schooner, bound from London to Cuba with a cargo of war sup Case of the Stephen Hart. plies, captured in 1862 off the coast of Florida, Judge Betts condemned both vessel and cargo. He maintained that: ... "The commerce is in the destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, which may be but one of many carriers through which the property is to reach its true and original destination. . . . If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty intention cannot be obliterated by the innocent intention of stopping at a neutral port on the way. . . . This court holds that, in all such cases, the transportation or voyage of the contraband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful throughout; and that the vessel and her cargo are subject to capture; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transportation by sea from such neutral port to the port of the enemy.' Position of the commerce. 2 This position of the United States, which has been so criticized, is liable to be abused to the disadvantage of neutral The absence of some such rule would United States. open the door to acts which, though neutral in form, would be hostile in fact. It seemed necessary to allow the exercise of a certain amount of supervision over commerce of neutrals when it was destined to neutral ports having convenient communication with the enemy. This might extend to the seizure of neutral vessels bound for that port only in 13 Wall., 514. 2 Blatchford's Prize Cases, 387, 405, 407. form, provided there was no doubt as to the true destination, but such seizure was to be made with the greatest care not to violate the proper rights of neutrals. There was less reason for the general exercise of this supervision over vessels sailing to a neutral port which was separated from the belligerent territory by a considerable expanse of water, than for its exercise over vessels sailing to a port which was separated only by a narrow expanse of water. In cases where the neutral port was upon the same land area with the belligerent territory and had easy communication by rail or otherwise, so that it might become a natural port of entry for goods bound for one of the belligerents, the other belligerent might properly exercise a greater degree of authority in the supervision of commerce than would ordinarily be allowable. It was on this ground that England could justify her action in the seizure of vessels bound for Delagoa Bay during the war in South Africa, in 1899-1900; and similarly Italy justified her seizure of the Dutch vessel, Doelwyk, in August, 1896, during the Abyssinian war. This vessel was bound for a friendly port, but a port from which its cargo of war supplies would pass overland to the enemy without difficulty. (b) "The doctrine of continuous voyage in respect both of contraband and of blockade " was the subject Rules of the Declaration of of much controversy at the London Naval Conference in 1908-1909. The United States Government had advanced the extremest claims under this doctrine during the Civil War of 1861-1865. It was acknowledged that these claims were made under exceptional circumstances. Certain states had positively denied the existence of the rights claimed by states maintaining the doctrine of continuous voyage. The Conference distinguishing between absolute and conditional contraband finally agreed upon the following only : "ART. 30. Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails either transhipment or transport over land." The right of capture was, however, extended to conditional contraband in the World War. (c) After 1914, even the American Civil War doctrines of continuous voyage were extended. Great Britain in April, 1916, asked why the doctrine should not apply to goods bound for Germany "passing through some Swedish port and across the Baltic or even through neutral waters only." Doctrine after 1914. During the World War, the expression "continuous transportation" was sometimes used in case of goods passing over land. The sole test in some cases was the real ultimate destination of the goods regardless of immediate or intermediate stopping places.1 145. Angary On March 21, 1918, the British Government communicated to its minister in the Netherlands that "After full consideration, the Associated Governments have decided to requisition the services of Dutch ships in their ports in exercise of the right of angary." 2 The idea of angary is ancient and refers to forced service. In early days the service of persons might in case of need be forced, but in modern times angary has been particularly applied to means of transport and communication. Many treaties even in the nineteenth century implied the existence of the right of angary and authors usually admitted the right. Towards the end of the century the practice was thought to be 1 See the Kim. L. R. [1915], 215. 2 Parliamentary Papers, Cd. 9025, No. 11 (1918) p. 2; Zamora (1916) 2 A. C. 77. |