[833] The Imina (1800), 3 C. Rob. 167; and the Trende Sostre (1800), cited in the Lisette (1806), 6 C. Rob. 391, note. See also Holland, Prize Law, § 70.
The Declaration of London distinguishes between carriage of absolute and conditional contraband:—
As regards absolute contraband, a vessel is, according to article 32, considered to be carrying contraband whether the fact that she is destined for an enemy port becomes evident from her papers, she being bound for such port, or whether she is found at sea sailing for an enemy port, although her papers show her to be bound for a neutral port. And, according to article 31, No. 2, it makes no difference that the vessel is bound for a neutral port and that the articles concerned are, according to her papers, destined for a neutral port, if only she is to touch at an intermediate enemy port or is to meet armed forces of the enemy before reaching the neutral port for which the goods in question are consigned.
As regards conditional contraband, a vessel is, according to article 35, considered to be carrying contraband whether her papers show her to be destined to an enemy port, or, being clearly found out of the course to a neutral port indicated by her papers, she is unable to give adequate reasons to justify such deviation.
Article 32 as well as article 35 stipulates that ship papers are conclusive proof as to the destination of the vessel and of the cargo, unless the vessel is clearly found out of the course indicated by her papers, but the Report of the Drafting Committee of the Naval Conference of London emphasises the fact that the rule of the conclusiveness of ship papers must not be interpreted too literally, since otherwise fraud would be made easy. Ship papers are conclusive proof—says the Report—unless facts show their evidence to be false.
Circuitous Carriage of Contraband.
§ 400. On occasions a neutral vessel carrying such articles as are contraband if they have a hostile destination is, according to her papers, ostensibly bound for a neutral port, but is intended, after having called and eventually having delivered her cargo there, to carry the same cargo from there to an enemy port. There is, of course, no doubt that such vessels are carrying contraband whilst engaged in carrying the articles concerned from the neutral to the enemy port. But during the American Civil War the question arose whether they may already be considered to be carrying contraband when on their way from the port of starting to the neutral port from which they are afterwards to carry the cargo to an enemy port, since they are really intended to carry the cargo from the port of starting to an enemy port, although not directly, but circuitously, by a roundabout way. The American Prize Courts answered the question in the affirmative by applying to the carriage of contraband the principle of dolus non purgatur circuitu and the so-called doctrine of continuous voyages.[834] This attitude of the American Prize Courts has called forth protests from many authorities,[835] British as well as foreign, but Great Britain has not protested, and from the attitude of the British Government in the case of the Bundesrath and other vessels in 1900 during the South African War it could safely, although indirectly only, be concluded that Great Britain considered the practice of the American Prize Courts correct and just, and that, when a belligerent, she intended to apply the same principles. This could also be inferred from § 71 of Holland's Manual of Naval Prize Law, which established the rule: "The ostensible destination of a vessel is sometimes a neutral port, while she is in reality intended, after touching, and even landing and colourably delivering over her cargo there, to proceed with the same cargo to an enemy port. In such a case the voyage is held to be 'continuous,' and the destination is held to be hostile throughout." And provided that the intention of the vessel is really to carry the cargo circuitously, by a roundabout way, to an enemy port, and further provided, that a mere suspicion is not held for a proof of such intention, I cannot see why this application of the doctrine of continuous voyages should not be considered reasonable, just, and adequate.
[834] The so-called doctrine of continuous voyages dates from the time of the Anglo-French wars at the end of the eighteenth century, and is connected with the application of the so-called rule of 1756. (See above, § [289].) Neutral vessels engaged in French and Spanish colonial trade, thrown open to them during the war, sought to evade seizure by British cruisers and condemnation by British Prize Courts, according to the rule of 1756, by taking their cargo to a neutral port, landing it and paying import duties there, and then re-lading it and carrying it to the mother country of the respective colony. Thus in the case of the William (1806), 5 C. Rob. 385, it was proved that this neutral vessel took a cargo from the Spanish port La Guira to the port of Marblehead in Massachusetts—the United States being neutral—landed the cargo, paid import duties there, then took in the chief part of this cargo besides other goods, and sailed after a week for the Spanish port of Bilbao. In all such cases the British Prize Courts considered the voyages from the colonial port to the neutral port and from there to the enemy port as one continuous voyage and confirmed the seizure of the ships concerned. See Remy, Théorie de la continuauté du voyage en matière de blocus et de contrebande (1902); Hansemann, Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande (1910), and Fauchille in R.G. IV. (1897), pp. 297-323. The American Courts have applied the doctrine of continuous voyages not only to carriage of contraband but also to blockade; see above, [§ 385 (4)], where the cases of the Bermuda and the Stephen Hart are quoted.
[835] See, for instance, Hall, § 247. But Phillimore, III. § 227, p. 391, says of the judgments of the Supreme Court of the United States in the cases of the Bermuda and the Peterhoff, that they "contain very valuable and sound expositions of the law, professedly, and for the most part really, in harmony with the earlier decisions of English Prize Courts." On the other hand, Phillimore, III. § 298, p. 490, disagrees with the American Courts regarding the application of the doctrine of continuous voyages to breach of blockade, and reprobates the decision in the case of the Springbok.