[Footnote 47: Takahashi, Int. Law during the Chino-Japanese War, pp. xvii-xxvii. Note on Continuous Voyages and Contraband of War by J. Westlake; also L.Q. Rev., Vol. 15, p. 24.]
The British assertion that the neutral destination of the ship precluded the possibility of a search being made, and that it was immaterial whether anything on board had a hostile destination ulterior to that of the ship, appears rather surprising when it is seen to be almost the opposite of the position taken in the seizures of ships bound for Delagoa Bay in Portuguese territory. Japan on the other hand maintained that the proceedings were entirely correct on the ground: (1) of the probability that the Gaelic might call at Amoy; (2) that the doctrine of continuous voyages was applicable in connection with contraband persons or goods if they were destined for the Chinese Government even by way of Hongkong. This it will be remembered was practically the view taken by Great Britain in the German seizures, though strenuously opposed in this incident.
Professor Westlake, commenting upon the case of the Gaelic, states the English view of the doctrine of continuous voyages as affecting: (1) goods which are contraband of war and (2) persons who are contraband of war, or analogues of contraband. Goods, he says, may be consigned to purchasers in a neutral port, or to agents who are to offer them for sale there, and in either case what further becomes of them will depend on the consignee purchasers or on the purchasers from the agents. He contends that "such goods before arriving at the neutral port have only a neutral destination; on arriving there they are imported into the stock of the country, and if they ultimately find their way to a belligerent army or navy it will be in consequence of a new destination given them, and this notwithstanding that the neutral port may be a well-known market for the belligerent in question to seek supplies in, and that the goods may notoriously have been attracted to it by the existence of such a market."[48]
[Footnote 48: L.Q. Rev., Vol. 15, p. 25.]
It is obvious that this was the position taken by Germany and other nations with reference to the interference with neutral commerce bound for Delagoa Bay. Professor Westlake continues in regard to the Japanese incident: "The consignors of the goods may have had an expectation that they would reach the belligerent but not an intention to that effect, for a person can form an intention only about his own acts and a belligerent destination was to be impressed on the goods, if at all, by other persons." Thus it is agreed, he says, "that the goods though of the nature of contraband of war, and the ship knowingly carrying them, are not subject to capture during the voyage to the neutral port"[49]
[Footnote 49: L.Q.R., Vol. 15, p. 25. Italics our own.]
The German Government could not have based its protest against the seizure of German mail steamers upon a stronger argument for the correctness of its position than upon this view expressing the English Government's attitude toward neutral commerce at the time of the seizure of the Gaelic. Professor Westlake points out, however, that goods on board a ship destined for a neutral port may be under orders from her owners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship or by transshipment, or even by land carriage. He shows that such goods are to reach the belligerent "without the intervention of a new commercial transaction in pursuance of the intention formed with regard to them by the persons who are their owners during the voyage to the neutral port. Therefore even during that voyage they have a belligerent destination, although the ship which carries them may have a neutral one."[50] In such a case, he declares, by the doctrine of continuous voyages, "the goods and the knowingly guilty ship are capturable during that voyage." In a word, "goods are contraband of war when an enemy destination is combined with the necessary character of the goods." And it is pointed out that "the offense of carrying contraband of war" in view of the doctrine of continuous voyages is committed by a ship "which is knowingly engaged in any part of the carriage of the goods to their belligerent destination."[51]
[Footnote 50: Ibid., p. 25.]
[Footnote 51: L.Q.R., Vol. 15, p. 26.]
It is shown that even if the doctrine of continuous voyages is denied as having any validity, it may still be held that "the goods and the knowingly guilty ship are liable before reaching the neutral port if that port is only to be a port of call, the ultimate destination of the ship as well as of the goods being a belligerent one."[52] But if the doctrine of continuous voyages is denied it may also be questioned "that a further intended carriage by transshipment or by land can be united with the voyage to the neutral port so as to form one carriage to a belligerent destination, and make the goods and the knowingly guilty ship liable during the first part" of the voyage.[53] In other words, a belligerent destination both of the goods and of the ship carrying them would be required.