(1) "Neutral merchant ships on the high seas or in the territorial waters of the belligerent Powers …are subject to the right of visit by the warships of the belligerent parties." It was pointed out that this was apart from the right of convoy, a question which did not arise in the cases under discussion. The proposal was not intended to apply to waters which were too remote from the seat of war and a special agreement was advocated for mail ships.
"(2) The right of visit is to be exercised with as much consideration as possible and without undue molestation.
"(3) The procedure in visiting a vessel consists of two or three acts according to the circumstances of each case; stopping the ship, examining her papers, and searching her. The two first acts may be undertaken at any time, and without preliminary proceeding. If the neutral vessel resists the order to stop, or if irregularities are discovered in her papers, or if the presence of contraband is revealed, then the belligerent vessel may capture the neutral, in order that the case may be investigated and decided upon by a competent Prize Court.
"(4) By the term 'contraband of war' only such articles or persons are to be understood as are suited for war and at the same time are destined for one of the belligerents." "The class of articles to be included in this definition," it was intimated, "is a matter of dispute, and with the exception of arms and ammunition, is determined, as a rule, with reference to the special circumstances of each case unless one of the belligerents has expressly notified neutrals in a regular manner what articles it intends to treat as contraband and had met with no opposition.
"(5) Discovered contraband is liable to confiscation; whether with or without compensation depends upon the circumstances of each case.
"(6) If the seizure of the vessel was not justified the belligerent state is bound to order the immediate release of the ship and cargo and to pay full compensation."
It was the view of the German Government according to these principles, and in view of the recognized practice of nations, that it would not have been possible to lodge a protest against the stopping on the high seas of the three German steamers or to protest against the examination of their papers. But by the same standard, it was contended that the act of seizing and conveying to Durban the Bundesrath and the Herzog, and the act of discharging the cargoes of the Bundesrath and General, were both undertaken upon insufficiently founded suspicion and did not appear to have been justified.
The end of the discussion between Great Britain and Germany left the somewhat uncertain doctrine of continuous voyages still unsettled. As applied in 1863 distinctly to a breach of blockade it was generally considered an innovation. As applied, or attempted to be applied, by Great Britain in 1900 to trade between neutral ports at a time when no blockade existed or was in fact possible, it failed to receive the acquiescence of other nations who were interested. The discussion, however, rendered, apparent a clear line of cleavage between English practice and Continental opinion.
Mr. Lawrence characterizes as "crude" the doctrine of the German Chancellor, that neutral ships plying between neutral ports are not liable to interference; that, in order for the ship to be legitimately seized, there must be contraband on board, that is, goods bound for a belligerent destination, and that this could not occur where the destination was a neutral port and the point of departure a neutral port. He declares that if this doctrine were accepted the offense of carrying contraband "might be expunged from the international code;" that "nothing would be easier for neutrals than to supply a belligerent with all he needed for the prosecution of his war."[38] He points out the danger of the acceptance on the part of the Powers of such a doctrine by citing the hypothetical case of France engaged in war, and asserts that under such circumstances even arms and ammunition might be poured into the neutral port of Antwerp and carried by land to the French arsenals. If Germany should be at war, munitions of war might be run in with practically no hindrance through the neutral harbors of Jutland. If Italy were at war, Nice or Trieste might be used in the same manner for the Italian Government to secure arms and ammunition.
[Footnote 38: Principles of Int. Law, 3d Ed., p. 679.]