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port. In the case secondly put the doctrine of continuous voyages is that the goods and the knowingly guilty ship are capturable during that voyage. That doctrine regards goods as being contraband of war when an enemy destination is combined with the necessary character of the goods, and it regards the offence of. carrying contraband of war as being committed by a ship which is knowingly engaged in any part of the carriage of the goods to their belligerent destination. Those who deny the doctrine of continuous voyages can still hold that even in the second case 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, but they deny that a further intended carriage by transhipment 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 it. They require a belligerent destination both of the goods and of the ship carrying them.
The doctrine of continuous voyages does not apply to breach of blockade. In contraband of war the root of the offence is in the nature of the aid supplied to a belligerent, that is in the goods, and the connexion of the ship with the offence must be proved. In breach of blockade the root of the offence is in the attempt to enter into prohibited communication with a belligerent coast, that is in the ship, and the connexion of the goods with the offence must be proved. The ship indeed, according to British and United States principles, commits the offence as soon as she sails -on a blockade-running expedition, notwithstanding that it may be intended to interpose a neutral port of call before she reaches the blockaded coast which is her ultimate destination ; but a ship of which the only destination is to a neutral port cannot be connected with the blockade-runner into which her cargo is transhipped in that port. The cargo cannot be a source of infection before an offence of blockade-running from which its own guilt may be derived is committed. If, according to the French practice, the offence is committed only by the attempt to cross the very line of blockade, or by proceeding in order to do so after receiving a notification from a belligerent cruiser, the doctrine of continuous voyages cannot so much as be suggested in connexion with the case.
It was in connexion with the so-called rule of the war of 1756, namely that neutrals will not be allowed to engage in time of war in the trade between the enemy and his colonies from which they are excluded in time of peace, that Sir William Scott and Sir William Grant had occasion to establish the doctrine that goods must be considered as undergoing a continuous carriage from port A to port C, notwithstanding a call at port B where, for the sake of an appearance of importation, they are landed, duty is paid on them, and they are reshipped : the Maria, 5 C. Rob. 368; the William, 5 C. Rob. 385. The former judge is sometimes quoted as if in the case of the Imina he had condemned the application of a corresponding principle to the carriage of contraband of war. What however he said, namely that the contraband goods must be taken in the actual prosecution of a voyage to the enemy's port, was said with reference to the point that the proceeds cannot be taken on the return voyage, and he was not thinking of the exact circumstances in which an enemy destination will be held to have been actual: 3 C. Rob. 168. That he did not regard a neutral destination of the ship as conclusive against a condemnation of contraband goods on board her appears in the Rapid, Edwards 228, which was the case of a ship carrying a despatch addressed to a hostile minister. 'It is to be observed,' remarked Sir W. Scott, that where the commencement of the voyage is in a neutral country and it is to terminate at a neutral port, or as in this instance at a port to which though not neutral an open trade is allowed, in such a case there is less to excite his (the master's) vigilance, and therefore it may be proper to make some allowance for any imposition which may be practised upon him.' This distinctly gave it to be understood that the carriage of despatches, which is at least analogous to that of contraband goods if the despatches, being things and not persons, do not fall simply within the description of goods, would not necessarily be held to be innocent because the voyage of the ship was to terminate at a neutral port. In the case of the Ocean, 3 C. Rob. 297, Sir W. Scott held that communication by sea with a port not blockaded is not made guilty by internal communication between that port and a blockaded one, by land or inland navigation. But since we have seen that the doctrine of continuous voyages does not apply to breach of blockade, that decision does not tell against its validity with regard to the carriage of contraband.
The doctrine of continuous voyages sprang into importance and was maintained during the Civil War in the United States, but, unfortunately from the point of view of science, the carriage of contraband was then generally connected with blockade-running, and consequently the judgments in the cases of the Stephen Hart, the Springbok and the Peterhof' fail to distinguish between the two sets of conditions with the desirable clearness. However, in the case of the Peterhof' blockade, according to Sir W. Scott's doctrine in the Ocean, was out of the question, because the ship's destination was to the Mexican port of Matamoras, from which the communication with the Confederate territory was to be made by land or inland navigation. And here the Supreme Court on appeal, while not expressly disapproving the expressions pointing to an application of the doctrine to blockade which had been used in the district court, put the matter as to contraband in words which deserve to be quoted. It is true that these goods if really intended for sale in the market of Matamoras would be free of liability, for contraband may be transported by neutrals to a neutral port if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles were destined for the use of the rebel forces then occupying Brownsville and other places in the vicinity'(5 Wallace 59).
The case of the Peterhoff had to be more or less considered by the English Court of Common Pleas in Hobbs v. IIenning, an action brought by the owners of the condemned goods against the underwriters, the judgment in which has been represented, I think erroneously, as repudiating the doctrine of continuous voyages. In pronouncing on the demurrer to the seventh plea the Court held that the allegation that the goods were shipped ‘for the purpose of being sent to and imported into a port in a state engaged in hostilities with the United States' was consistent with the supposition, which we know was not in fact made by the American judges, that the plaintiff shipped the goods for sale at Matamoras, expecting to find there persons who would buy them on behalf of the Confederate States. And
were quoted on the distinction between the expectation that goods will be applied to an illegal use and participation in an attempt to apply them to such use. What was the object of this, if it was thought that the condemnation would have been wrong even supposing that the goods were not intended for sale at Matamoras but for further transit to the Confederates ? It is true that Sir W. Scott's language in the Imina was quoted as proving that the voyage must be to an enemy's port, but the true mind of that judge has been shown above both from the context of the Imina and from his language in the Rapid. See 17 C. B., N. S., pp. 819, 820. The eighth plea was the United States sentence, and was disallowed for the reasons that the ground of condemnation did not sufficiently appear, and that the sentence would bear the interpretation that the Peterhoff 'was bound to Matamoras, not for the purpose of commerce with the inhabitants thereof, but for the purpose of such a sale (the italics are mine) or transfer there as that the Confederates should get the use of the
cargo.' 'We have no jurisdiction,' the Court said, 'to enquire into, nor are we at all considering, the validity of the legal
, grounds of the judgment': p. 825. On the whole then no positive opinion is to be found in Hobbs v. Henning on the doctrine of continuous voyages, and the tendency of the Court's observations is not unfavourable to it.
Among the rules on contraband of war adopted by the Institute of International Law at its Venice meeting in 1896 is one which recognizes the doctrine of continuous voyages as here laid down. * La destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports, ou bien à un port neutre qui, d'après des preuves évidentes et de fait incontestable, n'est qu'une étape pour l'ennemi comme but final de la même opération commerciale’: Annuaire de l'Institut de Droit International, vol. 15, p. 2311.
II. Whether the doctrine of continuous voyages affects persone.
When a person whose character would stamp him as contraband or an analogue of contraband is a passenger on board a ship bound for a neutral port and having no ulterior destination, but intends on arriving there to proceed to a belligerent port, there can be no closer connexion between the two parts of his journey than that he should hold a through ticket to the belligerent port, issued under a system of through booking by the owners of the ship in which he is. Even in that case however there is this difference between a person and goods or despatches, that the person cannot be forwarded like a thing. The through ticket is a facility given him for continuing his journey, but it must depend on him whether he will use it: he may change his intention and either continue his journey in some other way not having any unlawful connexion with the first part of it, or not continue it at all. Even therefore in the case of his holding a through ticket, and a fortiori where the passenger is only booked to a neutral port, he cannot be constructively bound for a belligerent destination until he is actually for one. There must for such destination be a determination of his own which during the first part of his journey inevitably remains contingent, and which is therefore analogous to the new determination which may be given in the neutral port
" 'A destination for the enemy is presumed when the carriage of the goods is directed towards one of his ports, or towards a neutral port which, by evident proofs arising from incontestable facts, is only a stage in a carriage to the enemy as the final object of the same commercial transaction.'
as to the employment of goods which have found a market there. In the mean time the owners of the first ship may have an expectation as to his acts, analogous to that which they may have as to the ultimate destination of goods seeking a market in the neutral port, but they can have no intention as to his acts, that is no state of mind analogous to that of the owner of goods who ships them for an immediate neutral destination in order that they may be forwarded thence to a belligerent destination.
If the above view be correct it will follow that the doctrine of continuous voyages cannot be applied to the carriage of persons, and such is the conclusion to which I come. No objection to that view can be founded on cases of which the type is the Orozembo, 6 C. Rob. 430, where the persons are not taken on board in the ordinary course as passengers, but in pursuance of a special contact placing or virtually placing the ship in belligerent service. It may well be that in a case of that class the ship is only to convey the persons as far as a neutral port from which an ulterior carriage of them is to commence. She will not be the less capturable on her voyage to that port, not however on account of the ulterior carriage contemplated but on account of the service in which she is held to be actually engaged.
On the ground here taken up the famous international difficulty which arose out of the incident of the Trent receives a short and as I submit a satisfactory solution. It becomes unnecessary to discuss whether the character of Messieurs Mason and Slidell ranked them with contraband, whether they could be taken out of the ship without bringing the ship in for condemnation, or whether a destination to a neutral port precludes all further question in the case of contraband goods. It is not even necessary to point out that at St. Thomas, for which the Trent was bound, Messieurs Mason and Slidell were to tranship for another neutral destination, England. That the Trent's own destination, St. Thomas, was neutral, and that a neutral destination of the ship is conclusive in the case of passengers taken on board her in the regular course, as were Messieurs Mason and Slidell, is enough to close the controversy. I do not deny that if the Trent's own destination had been to England, merely calling at St. Thomas, it would have been the neutrality of England and not that of St. Thomas which would have been conclusive as to passengers on board her with tickets for England.