The neutral merchant / in relation to the law of contraband of war and blockade under the order in Council of 11th March, 1915

by Francis Taylor Piggott

The Right and the Duty of Search

But the principle of seizure is still in a very crude state; and seeing that all cargoes destined for the enemy are not liable to seizure, and that for practical reasons it is neither possible nor advisable to bring in every cargo for adjudication in the Prize Courts, a supplementary right has been devised, known as the ‘right of search.’ It is the first step in the seizure, and, on the one hand, affords the belligerent an opportunity of letting non-contraband cargo go free; on the other hand, it gives the owner of the cargo an immediate opportunity of proving its innocent character. The right of search is often stated as an independent right, but it is in reality secondary to the right of seizure, and references to it obviously apply equally to the right of seizure. As to its unlimited nature I need do no more than quote the well-known words of Lord Stowell in the case of the Swedish convoy.[19] It is incontrovertible

that the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be their destination, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation.... This right is so clear in principle that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be captured, it is impossible to capture.

On this another rule has been grafted which is suggested by the enunciation of the law as to the right of search. That right must be exercised for the very same reason that the right has been allowed, for otherwise you do not know whether you have the right to seize. From the right of search has therefore developed the duty to search; and it is the omission to recognise this duty that has plunged the German Admiralty into its piratical career.

The Doctrine of Continuous Voyages

But the heart of the neutral merchant is desperately ingenious, especially when his country is contiguous to the theatre of war, and no sooner had he obtained the inch to which practical considerations made him appear to be entitled than he developed it into an ell of his own imagining. He argued thus: A neutral vessel bound to an enemy port is liable to detention, because the presumption is that she has cargo for the enemy, and that her cargo is probably contraband; the presumption also is that cargoes on board a vessel bound for a neutral port are not destined for the enemy, even though they may be contraband; nothing easier than to bring them across the sea in a neutral vessel with a neutral destination; all that remains to be done is to pass them on to the belligerent, either transhipping them into another vessel and sending it down the coast, out of the way of the attentions of the enemy’s cruisers, or better still, if the neutral and belligerent countries are contiguous, by rail across the border. And the best of the plan is that the shipper on the other side of the water, say some innocent merchant in copper in the United States, need know nothing about it, so that if by chance the cargo does get seized he will do all the shouting.

With this problem, devised in some such human fashion, the United States was faced during the Civil War, and the Judges settled it in characteristic and logical manner. They discovered the doctrine of ‘continuous voyages.’ It is nothing more than the simple application of elementary principles, and is arrived at by the elimination of the presumption of innocence which the voyage to the neutral port raised. All presumptions may be rebutted, and this one manifestly. ‘Be the destination what it may,’ the right of search existed; the presumption had only been allowed to grow because it was convenient. If goods destined for the enemy reached him by way of a neutral port, that port was only an intermediate destination; the ultimate consignee was the enemy, and there was a continuous voyage to him from the port of shipment. Therefore the seizure, and therefore the search, were justified, and could not be denied merely because ‘the final destination of the cargo was left so skilfully open.’

But the neutral merchant’s wits are sharpened by much profit in prospect; he is no simpleton, and a consignment of, let us say, copper from the United States is not likely to be addressed ‘Herr Krupp von Bohlen, Essen, viâ Rotterdam, by kind favour of Messrs. Petersen & Co.’ Hence a most ingenious argument conducted on the principle ‘You shut your eyes, I’ll keep mine open.’ A consignment ‘to order’ (as ‘to the order of Messrs. Petersen & Co.’) may perhaps be legitimately seized, because the words do not clearly indicate the Dutch firm to be the real purchasers; but certainly not a consignment to a specific person (as to Messrs. Petersen & Co., Rotterdam). The sophistry is obvious; it does not negative the possibility that Messrs. Petersen & Co. are either acting as buyers for, or have imported the goods with the intention of passing them on to, Herr Krupp of Essen. And with the help of trade statistics the possibility may be discovered to be a probability.

Embargo

And now the pendulum swings back, and in the doctrine of embargo the really neutral merchant comes into his own. ‘Embargo’ is the action taken by a neutral Government in regard to goods which have been declared to be contraband by one or other of the belligerents; and the point to be emphasised is that it springs directly out of the doctrine of ‘continuous voyages.’ In order to prevent neutral ships destined to its ports with goods which one of the belligerents treats as contraband being detained and searched at sea, it prohibits the export of those goods from its own ports. The embargo satisfies the belligerent that these goods will not go out of the neutral country, and therefore will not get directly or indirectly into the hands of the enemy; he therefore feels justified in letting those ships go free, for the doctrine of ‘continuous voyages’ cannot apply. Now the reason for the embargo is that the merchants of the neutral country require the commodity for themselves. Suppose, for example, that Spanish merchants require copper for their own use; then in order to ensure cargoes of copper coming direct to Spanish ports without being interfered with at sea by the search of belligerent cruisers, the Spanish Government might put an embargo on copper: that is to say, might prohibit its export. There could be no better evidence that the Spanish merchants were importing the copper for their own trade, and that none of it would get through to the enemy. I can therefore best describe an embargo thus: It is action taken by a neutral Government to protect those of its merchants who do not desire to engage in trade in contraband from the consequences which would result from the action of those who do.