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perhaps better to say that, in the absence of a municipal statute forbidding trade in articles of contraband, international law permits the belligerent to capture and confiscate such articles. This is tantamount to saying that such trade is permitted by international law, subject to capture.
The question arises, where may the articles be captured? and AngloAmerican practice answers, the moment they have left the neutral jurisdiction en route to the enemy country, in the case of absolute contraband, or to the port of equipment or agent of the enemy in the enemy country in the case of conditional contraband.
The penalty for the carriage of contraband was formerly confiscation of the ship and the cargo, but this rule has been relaxed where good faith has been found. The articles of contraband are confiscated, the vessel is punished by loss of freight, and the innocent portions of the cargo released. Portions of the cargo otherwise innocent, but belonging to the owner of the vessel or to the owners of contraband, share its fate by the doctrine of infection.
But, as pointed out in the Bermuda (3 Wallace, 514, 556), "The rule requires good faith on the part of the neutral, and does not protect the ship where good faith is wanting." It should be said, in this connection, that the offense is deposited with the cargo; that is to say, the vessel is not liable to seizure after having landed its cargo at the port of destination, but good faith is also required in this transaction, and AngloAmerican practice subjects the vessel to capture after leaving the port of deposit if fraud or false papers have been resorted to. (Carrington v. Merchants' Insurance Co., 8 Peters, 518.) And, as said in the case of the Bermuda, "mere consent to transportation of contraband will not always or usually be taken to be a violation of good faith. There must be circumstances of aggravation."
So far it has been assumed that a neutral ship carries articles of contraband belonging to a neutral owner to an enemy port. It frequently happens, however, that a neutral vessel carries articles of contraband to a neutral port merely to enable the articles to be safely transported from the neutral port to a port of the enemy. Under these circumstances Anglo-American practice regards the voyage as continuous in law, although broken in fact, that the ostensible is not the real or ultimate destination, and, looking at the facts as they are and the intent of the shipper as found by circumstances, considers the voyage as in reality one from a neutral to a belligerent port, notwithstanding the fact that a neutral country is interposed. In the case of the Bermuda, above cited, Chief Justice Chase thus stated the rule: "The interposition of a neutral port between neutral departure and belligerent destination has always been a favorite resort of contraband carriers and blockaderunners. But it never avails them when the ultimate destination is ascertained. A transportation from one point to another remains continuous, so long as intent remains unchanged, no matter what stoppages or transshipments intervene," citing Jecker v. Montgomery, 18 Howard, 114, decided by the same court in 1855, in reference to shipments to Mexican ports during the war of this country with Mexico.
In the same case, Chief Justice Chase held that a vessel which, with the consent of the owner, is employed in the conveyance of contraband to belligerents in the first stage of a continuous transportation, is equally liable to capture and confiscation with the vessel which is employed in the last stage if the employment is such as to make either so liable.
Concerning the rule of continuity in respect to cargo, the Chief Justice continued:
At first, Sir William Scott held that the landing and warehousing of the goods and the payment of the duties on importation was a sufficient test of the termination of the original voyage; and that a subsequent exportation of them to a belligerent port was lawful (The Polly, 2 Robinson, 369). But in a later case, in an elaborate judgment (The William, 5 Id. 395; 1 Kent's Commentaries, 84, note), Sir William Grant reviewed all the cases, and established the rule, which has never been shaken, that even the landing of goods and payment of duties does not interrupt the continuity of the voyage of the cargo, unless there be an honest intention to bring them into the common stock of the country. If there be an intention, either formed at the time of original shipment, or afterwards, to send the goods forward to an unlawful destination, the continuity of the voyage will not be broken, as to the cargo, by any transactions at the intermediate port.
Where several ships are engaged successively in one transaction, namely, the conveyance of a contraband cargo to a belligerent, the Chief Justice, speaking for the court, laid down the rule as follows:
The question of liability must depend on the good or bad faith of the owners of the ships. If a part of the voyage is lawful, and the owners of the ship conveying the cargo in that part are ignorant of the ulterior destination, and do not hire their ship with a view to it, the ship cannot be liable; but if the ulterior destination is the known inducement to the partial voyage, and the ship is engaged in the latter with a view to the former, then whatever liability may attach to the final voyage, must attach to the earlier, undertaken with the same cargo and in continuity of its conveyance. Successive voyages, connected by a common plan and a common object, form a plural unit. They are links of the same chain, each identical in description with every other, aijd each essential to the continuous whole. The ships are planks of the same bridge, all of the same kind, and all necessary to the convenient passage of persons and property from one end to the other.'
In connection with the doctrine of continuous voyage, it may be said that a popular impression exists that under English law and practice the vessel cannot be captured before it reaches a neutral port, but only after it had left it on its way to the enemy. Thus, the late Mr. Hall said, in referring to the leading case of The William (5 C. Rob. 385), "In this and in like cases the English courts condemn the property; but they were careful not to condemn until what they conceived to be the hostile act was irrevocably entered upon; cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country." 3 This may be so; but if in reality the voyage be continuous it would seem to be permissible to seize the cargo before it reached the neutral port, provided the intent could be shown to continue the voyage from the neutral port to the enemy port. An equally distinguished American publicist, Professor John Bassett Moore, says, in commenting upon this subject, that"he [Hall] does not state, however, any case in which it was held by an English court that the performance of the process of'colorable importation' was a prerequisite to condemnation." 4 It appears that belligerents can, according to Anglo-American practice, intercept articles of absolute contraband, and articles of conditional contraband if they have the destination which permits their capture according to international law; and that, to speak merely of the practice of Great Britain and the United States, absolute and conditional contraband can be captured before they reach a neutral port if the circumstances show that they are ultimately destined to the enemy. It is not therefore correct, according to American practice, to say that trade is free and unrestricted between two neutral ports. The following language of Chief Justice Chase, in the case of the Bermuda, is in point:
It is asserted by counsel that a British merchant, as a neutral, had, during the late civil war, a perfect right to trade, even in military stores, between their own ports, and to sell at one of them goods of all sorts, even to an enemy of the United States, with knowledge of his intent to employ them in rebel war against the American government.
If by trade between neutral porta is meant real trade, in the course of which goods
'3 Wallace, 553-555.
* Hall, International Law, 6th ed., p. 668.
4 VII Moore, International Law Digest, 727.
conveyed from one port to another become incorporated into the mass of goods for Bale in the port of destination; and if by sale to the enemies of the United States is meant sale to either belligerent, without partiality to either, we accept the proposition of counsel as correct.
But if it is intended to affirm that a neutral ship may take on a contraband cargo ostensibly for a neutral port, but destined in reality for a belligerent port, either by the same ship or by another, without becoming liable, from the commencement to the end of the voyage, to seizure, in order to the confiscation of the cargo, we do not agree to it.5
In the case of the Springbok (5 Wallace, 1), decided in 1865, the court had before it the question of ultimate destination. The Springbok, a British, and therefore a neutral, vessel left London in 1862 and was captured in 1863 while making for the British harbor of Nassau which lay near the southern coast of the United States and was, during the Civil War, used as a port of call and of transshipment for cargoes intended for the Confederacy, whose ports were then blockaded by the United States. The court held that the cargo, contraband in nature and ostensibly intended for a neutral port, was, from the circumstances, in reality destined to a Confederate port, and proved the ulterior destination from the character of the cargo and by the fact that its owners had shipped it to order, not to specific consignees in Nassau. Said the court:
That some other destination than Nassau was intended may be inferred, from the fact that the consignment, shown by the bills of lading and the manifest, was to order or assigns. Under the circumstances of this trade, already mentioned, such a consignment must be taken as a negation that any sale had been made to any one at Nassau. It must also be taken as a negation that any such sale was intended to be made there; for had such sale been intended, it is most likely that the goods would have been consigned for that purpose to some established house named in the bills of lading.
The British claimants of the cargo took exception to the holding of the Supreme Court regarding consignment to order or assigns, but the British Government declared such a ruling to be in accord with British precedent and as justified by the circumstances. The case was, however, submitted under Article 13 of the Treaty of Washington of May 8,1871, to the International Commission, composed of an American, a British, and an Italian member, and was unanimously confirmed by that body.8
The Springbok involved blockade. The Peterhof, on the contrary,
• The Bermuda, 3 Wallace, 514, 551-552.
• VII Moore's International Law Digest, 723-725.
was a case of contraband from which the question of blockade invoked by counsel was carefully excluded by the court. This was also a British ship carrying contraband from the neutral port of London to the neutral port of Matamoras. It was captured by an American war vessel in 1863 near the island of St. Thomas, many miles from the mouth of the Rio Grande, upon which city the Mexican city of Matamoras lies. The court found that the voyage of the vessel really ended at Matamoras, and that it was not connected with the ultimate transshipment of the contraband cargo from Matamoras across the Rio Grande to Brownsville, Texas, at that time under control of the Confederate forces. The vessel was therefore released. The contraband portion of the cargo, however, was condemned, because, from the circumstances, the court believed that the contraband was to fall into the hands of the Confederates and, by the doctrine of infection, the innocent portion of the cargo belonging to the owner of the contraband portion was likewise condemned. The British Government refused to protest the decision, and, as in the case of the Springbok, so in the case of the Peterhof, the claims of British owners were submitted to the international commission and were unanimously disallowed.
It thus appears that by American practice, concurred in by Great Britain and affirmed by the awards of an arbitral tribunal, cargoes addressed to order or assigns in a neutral port may be condemned, and that cargoes addressed to a neutral port, intended to reach the enemy by internal communication, may likewise be condemned. The neutral, trading in contraband with a neutral port, runs the risk of losing the contraband cargo if, in the judgment of the captor, the circumstances surrounding the trade justify the belief that the articles of contraband are intended ultimately to find their way to the hands of the enemy, either by transshipment upon the seas or by internal communication.
There is, unfortunately, no agreement of the nations as to the articles to be considered contraband, and it is the practice of belligerents to declare the articles which they consider as absolute and conditional contraband. The London Naval Conference agreed upon lists of absolute and conditional contraband,7 and also agreed upon a list of articles which were not to be considered contraband of war.8 In the course of the war Great Britain, France and Russia have modified the lists of contraband
7 Articles 22 and 24 of the Declaration of London. Supplement, Vol. III, pp. 196, 198. See editorial in this Journal, page 199 on the status of the Declaration. • Article 28, Supplement, Vol. III, p. 200.