was condemned by the Italian Prize Court at Rome on the ground that the cargo was to be landed at Djiboutil, a French port, for shipment overland to Abyssinia with which Italy was then at war. See articles by M. Prosper Fedozzi in Revue de Droit International, XXIX, 55, 75-80, and by M. Giulio Diena in Journal du Droit International Privé, XXIV, 268; Pillet, Les Lois Actuelles de la Guerre, sec. 216. The decision of the Italian Prize Court is printed in 2 Commercial Cases, 202. There was an important discussion of the doctrine of continuous voyage at the time of the South African War in connection with the seizure by British cruisers of the Bundesrath and other German vessels bound for the neutral Portuguese port of Lorenzo Marques on Delagoa Bay. It was through this port that the Boer republics, which had no seacoast, were obliged to carry on their commerce with the outside world. The British Government was unable to show that the cargoes of the German vessels were such as to justify their detention, but in the discussion of the legal questions involved, Lord Salisbury adopted the views set forth in the American decisions and quoted the German jurist Bluntschli to the effect that if the ships or cargoes are sent to a neutral port only to facilitate their reaching the enemy they are contraband and subject to confiscation. Moore, Digest, VII, 739. In the Turco-Italian War in 1912 an Italian cruiser seized the French steamer Carthage, bound from France to the French colony of Tunis, because it had on board an aeroplane alleged to be intended for the Turkish forces in Tripoli. The case was submitted to the Permanent Court of Arbitration at The Hague, which decided that there was insufficient evidence to establish the hostile destination of the aeroplane. See Wilson, The Hague Arbitration Cases, 352. The first application of the doctrine of enemy destination in the Great War seems to have been made by the British Prize Court in Malta in the case of The Venizelos, decided July 15, 1915. A cargo of food on a neutral vessel consigned by way of an Italian port to a commercial house in Switzerland was condemned as conditional contraband since the claimants were unable to prove that the goods had an innocent destination. See Journal of the Society of Comparative Legislation, (N. S.) XVI, 70. On July 8, 1916, there was published in the London Gazette an Order in Council setting forth various principles of prize law to be observed. Among them was this:

The principle of continuous voyage or ultimate destination shall be applicable both in cases of contraband and blockade. After the decision of Sir Samuel Evans in The Kim, the doctrine of enemy destination was applied to a great variety of situations. The close proximity to Germany of such neutral maritime states as Holland, Denmark, Norway and Sweden and the enormous increase in exports from those countries to Germany led to the establishment of the rule in both England and France that neutral consignees must prove that goods consigned to them did not have an enemy destination, The Hillerod (1917), L. R. [1918] A. C. 412; The Insulinde (France, 1915), Revue General de Droit International, XXII, 18 J. An

51

intent to submit conditional contraband goods to public auction in the neutral country to which they are consigned does not relieve the claimant of the burden of proving that the goods do not have an enemy destination, The Norne (1921), L. R. [1921] 1 A. C. 765. A claimant may be obliged to exhibit his books in order to show the increase in the volume of his trade to Germany, The Consul Corfitzon (1917), L. R. [1917] A. C. 550. A cargo of wool (absolute contraband) consigned to a neutral firm in Sweden but intended to be sent to Germany for combing and then returned to Sweden for manufacture was condemned on the ground that it was on its way to enemy territory even though that was not its ultimate destination, The Axel Johnson (1921), L. R. [1921] 1 A. C. 473.

For the effect of the transshipment of a cargo belonging to a neutral from an enemy to a neutral ship in a neutral port, see The Rijn (1917), L. R. [1917] P. 145. As to the status of raw materials consigned to a neutral country where they are to be made into goods for the enemy see The Balto (1917), L. R. [1917] P. 79. The devices resorted to by Germany to import goods from America through neutral countries are well described by means of intercepted and decoded letters in The Dirigo (1919), L. R. [1919] P. 204.

The doctrine of enemy destination was applied by the German prize courts in the Great War. A Danish steamer bound to Copenhagen with a cargo part of which was destined to Germany was stopped by a British cruiser, and was allowed to proceed to Denmark in order to unload the goods bona fide destined for Denmark but was required to give a bond that it would return to England with the cargo intended for Germany. On the way to Denmark it was captured by a German cruiser, and its cargo was condemned on the ground that the bond which compelled the vessel to return to England gave it an enemy destination, The Kiew (1917), Entscheidungen, 241. See also The Brage (1917), Ib. 267; The Lupus (1917), Ib. 377; The Mjölner (1917), Ib. 421.

In view of the decision of the French Prize Court in The Frou Howina, of the Italian Prize Court in The Doelwijk, and of the British Prize Courts in The Kim and other cases, and of the German Prize Courts in several cases, and in view of the position taken by Japan in the case of The Gaelic, by Great Britain in the case of The Bundesrath and in her Orders in Council of July 8, 1916, and by Italy in the case of The Carthage, the much reviled decision in the case of The Springbok may now be regarded as established law.

The doctrine of enemy destination is closely analogous to the rule followed by the American courts in determining whether a particular transaction is or is not interstate commerce. Just as the claimants in The William tried to divide one voyage into two by transshipment at an intermediate port, so shippers on American railways have tried to break up an interstate transaction into its component parts in order to make it appear to be an intrastate shipment. It is well settled, however, that whenever a commodity begins to move in interstate commerce it becomes a part of interstate commerce and falls under Federal jurisdiction even though it has not yet passed from

the State of origin, The Daniel Ball (1871), 10 Wallace, 557, 565. A shipment which is really interstate will be treated as such, regardless of the agencies employed or the form of the bill of lading, Railroad Commission of Louisiana v. Texas & Pacific Ry. (1913), 229 U. S. 336; Baer Brothers Mercantile Co. v. Denver & Rio Grande Ry. (1914), 233 U. S. 479.

The literature of the doctrine of continuous voyage or enemy destination is extensive. In an unusually careful article "Early Cases on the Doctrine of Continuous Voyages" in Am. Jour. Int. Law, IV, 823, Mr. L. H. Woolsey showed that the doctrine did not originate with Lord Stowell but was applied by British Prize Courts in the Seven Years' War. See also C. B. Elliott, "The Doctrine of Continuous Voyages," Ib., I, 61, C. N. Gregory, "The Doctrine of Continuous Voyage," Report of 26th Conference, Int. Law Assoc., 120; Int. Law Topics, 1905, 77; Int. Law Sit. 1910, 90; Westlake, Collected Papers, 461; Baty, Int. Law in South Africa, 1-44; Pyke, The Law of Contraband of War, ch. xii; Pyke, "The Kim Case," Law Quarterly Review, XXXII, 50; Cobbett, Cases and Opinions, II, 466; Bonfils (Fauchille), sec. 1567; Hyde, II, 602; Moore, Digest, VII, 383, 697.

CHAPTER XXI.

THE RIGHTS AND DUTIES OF NEUTRALS.

SECTION 1. THE INVIOLABILITY OF NEUTRAL TERRITORY.

THE TWEE GEBROEDERS.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1800.
3 C. Robinson, 162.

Sir W. SCOTT [LORD STOWELL]-This ship was taken on the 14th July 1799, on a voyage from Embden to Amsterdam, which was then under blockade; a claim has been given by the Prussian government, asserting the capture to have been made within the Prussian territory. In the course of the discussion, which this suit has produced, it has been contended that although the act of capture itself might not take place within the neutral territory, yet, that the ship to which the capturing boats belonged was actually lying within the neutral limits; and therefore, that wherever the place of capture might be, the station of the ship was in itself sufficient to affect the legality of the capture.

Upon the question so proposed, the first fact to be determined is, the character of the place where the capturing ship lay; whether she was actually stationed within those portions of land and water, or of something between water and land, which are considered to be within the limits of the Prussian territory?

I am of opinion, that the ship was lying within those limits, in which all direct hostile operations are by the law of nations forbidden to be exercised. That fact being assumed I have only to inquire, whether the ship being so stationed, the capture which took place, was made under such circumstances, as oblige us to consider it as an act of violence, committed within the protection of a neutral territory.

It is said that the ship was, in all respects, observant of the peace of the neutral territory; that nothing was done by her,

which could affect the right of territory, or from which any inconvenience could arise to the country, within those limits she was lying; inasmuch as the hostile force which she employed, was applied to the captured vessel lying out of the territory. But that is a doctrine that goes a great deal too far; I am of opinion, that no use, of a neutral territory, for the purposes of war, is to be permitted; I do not say remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but that, no proximate acts of war are in any manner to be allowed to originate on neutral grounds; and I cannot but think, that such an act as this, that a ship should station herself on neutral territory, and send out her boats on hostile enterprises, is an act of hostility much too immediate to be permitted: for, suppose that even a direct hostile use should be required, to bring it within the prohibition of the law of nations; nobody will say, that the very act of sending out boats to effect a capture, is not itself an act directly hostile-not complete indeed, but inchoate, and clothed with all the characters of hostility. If this could be defended, it might as well be said, that a ship lying in a neutral station might fire shot on a vessel lying out of the neutral territory; the injury in that case would not be consummated, nor received on neutral ground; but no one would say, that such an act would not be an hostile act, immediately commenced within the neutral territory: And what does it signify to the nature of the act, considered for the present purpose, whether I send out a cannon-shot which shall compel the submission of a vessel lying at two miles distance, or whether I send out a boat armed and manned to effect the very same thing at the same distance? It is in both cases the direct act of the vessel lying in neutral ground; the act of hostility actually begins, in the latter case, with the launching and manning and arming the boat, that is sent out on such an errand of force.

If it were necessary therefore to prove, that a direct and immediate act of hostility had been committed; I should be disposed to hold that it was sufficiently made out by the facts of this case. But direct hostility appears not to be necessary; for whatever has an immediate connection with it is forbidden: you cannot, without leave, carry prisoners or booty into a neutral territory, there to be detained, because such an act is in immediate continuation of hostility. In the same manner, an act of hostility is not to take its commencement on neutral ground: