Indirect Carriage of Contraband (Doctrine of Continuous Transports).
§ 401. It also happens in war that neutral vessels carry to neutral ports such articles as are contraband if bound for a hostile destination, the vessel being cognisant or not of the fact that arrangements have been made for the articles to be afterwards brought by land or sea into the hands of the enemy. And the question has arisen whether such vessels on their voyage to the neutral port may be considered to be carrying contraband of war.[836] As early as 1855, during the Crimean War, the French Conseil-Général des Prises, in condemning the cargo of saltpetre of the Hanoverian neutral vessel Vrow Houwina, answered the question in the affirmative;[837] but it was not until the American Civil War that the question was decided on principle. Since from the British port of Nassau, in the Bahamas, and from other neutral ports near the coast of the Confederate States, goods, first brought to these nearer neutral ports by vessels coming from more distant neutral ports were carried to the blockaded coast of the Southern States, Federal cruisers seized several vessels destined and actually on their voyage to Nassau and other neutral ports because all or parts of their cargoes were ultimately destined for the enemy. And the American Courts considered those vessels to be carrying contraband, although they were sailing from one neutral port to another, on clear proof that the goods concerned were destined to be transported by land or sea from the neutral port of landing into the enemy territory. The leading cases are those of the Springbok and Peterhoff, which have been mentioned above in [§ 385 (4)], for the Courts found the seizure of these and other vessels justified on the ground of carriage of contraband as well as on the ground of breach of blockade. Thus, another application of the doctrine of continuous voyages came into existence, since vessels whilst sailing between two neutral ports could only be considered to be carrying contraband when the transport first from one neutral port to another and afterwards from the latter to the enemy territory had been regarded as one continuous voyage. This application of the doctrine of continuous voyages is fitly termed "doctrine of continuous transports."
[836] The question is treated with special regard to the case of the Bundesrath, in two able articles in The Law Quarterly Review, XVII. (1901), under the titles "The Seizure of the Bundesrath" (Mr. I. Dundas White) and "Contraband Goods and Neutral Ports" (Mr. E. L. de Hart). See also Baty, International Law in South Africa (1900), pp. 1-44.
[837] See Calvo, V. § 2767, p. 52. The case of the Swedish neutral vessel Commercen, which occurred in 1814, and which is frequently quoted with that of the Vrow Houwina (1 Wheaton, 382), is not a case of indirect carriage of contraband. The Commercen was on her way to Bilbao, in Spain, carrying a cargo of provisions for the English army in Spain, and she was captured by a privateer commissioned by the United States of America, which was then at war with England. When the case, in 1816, came before Mr. Justice Story, he reprobated the argument that the seizure was not justified because a vessel could not be considered to be carrying contraband when on her way to a neutral port, and he asserted that the hostile destination of goods was sufficient to justify the seizure of the vessel.
The Case of the Bundesrath.
§ 402. This application of the doctrine of continuous voyages under the new form of continuous transports has likewise been condemned by many British and foreign authorities; but Great Britain did not protest in this case either—on the contrary, as was mentioned above in [§ 385 (4)], she declined to interfere in favour of the British owners of the vessels and cargoes concerned. And that she really considered the practice of the American Courts just and sound became clearly apparent by her attitude during the South African War. When, in 1900, the Bundesrath, Herzog, and General, German vessels sailing from German neutral ports to the Portuguese neutral port of Lorenzo Marques in Delagoa Bay, were seized by British cruisers under the suspicion of carrying contraband, Germany demanded their release, maintaining that no carriage of contraband could be said to take place by vessels sailing from one neutral port to another. But Great Britain refused to admit this principle, maintaining that articles ultimately destined for the enemy were contraband, although the vessels carrying them were bound for a neutral port.[838]
[838] See Parliamentary Papers, Africa, No. 1 (1900); Correspondence respecting the action of H.M.'s naval authorities with regard to certain foreign vessels.
There is no doubt that this attitude of the British Government was contrary to the opinion of the prominent English[839] writers on International Law. Even the Manual of Naval Prize Law, edited by Professor Holland[840] in 1888, and "issued by authority of the Lords Commissioners of the Admiralty," reprobated the American practice, for in § 72 it lays down the following rule: "... If the destination of the vessel be neutral, then the destination of the goods on board should be considered neutral, notwithstanding it may appear from the papers or otherwise that the goods themselves have an ulterior destination by transhipment, overland conveyance, or otherwise." And the practice of British Prize Courts in the past would seem to have been in accordance with this rule. In 1798, during war between England and the Netherlands, the neutral ship Imina,[841] which had left the neutral port of Dantzig for Amsterdam carrying ship's timber, but on hearing of the blockade of Amsterdam by the British had changed her course for the neutral port of Emden, was seized on her voyage to Emden by a British cruiser; she was, however, released by Sir William Scott because she had no intention of breaking blockade, and because a vessel could only be considered as carrying contraband whilst on a voyage to an enemy port. "The rule respecting contraband, as I have always understood it, is that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy port," said Sir William Scott.[842]
[839] See, for instance, Hall, § 247, and Twiss in The Law Magazine and Review, XII. (1877), pp. 130-158.
[840] In a letter to the Times of January 3, 1900, Professor Holland points out that circumstances had so altered since 1888 that the attitude of the British Government in the case of the Bundesrath was quite justified; see Holland, Letters to the "Times" upon War and Neutrality (1909), pp. 114-119.