CHAPTER XX
CARRIAGE OF CONTRABAND—CONTINUOUS VOYAGE
WE have seen how the general principles of the doctrine of contraband have received enough endorsement from sovereign states to make them respectable. We have also seen by reference to the great war drama now unfolding how the last and best attempt of the nations to designate by the London Declaration what shall and what shall not be contraband has failed, thus denying to neutrals that which law is supposed to furnish for them, viz., such an accurate understanding as to their rights and duties as may prevent erroneous action.
With such a collapse to advertise the shortcomings of an artificial doctrine it may well be hoped that the time is not far distant when, instead of meeting in grave conclaves to classify contraband, statesmen will put all neutral goods on the free list that are outside of guarded waters. Until that time comes neutral shippers will have to think of international law in this aspect as forbidding and against nature. In the meantime those of them that are informed are not likely to forget that while the law which permits belligerents to interfere with neutral ships outside of the sphere they dominate is "international," the prohibition which contraband carrying neutrals break is "municipal"; a fact which will continue to make such restrictions the more odious, as well as the less defensible.
The more odious because they affect to control a citizen who owes no allegiance to any other country than his own in fields where the forbidding Power has absolutely no jurisdiction. The less defensible because these restraints lack the characteristics which would attach to them (as far as the offender is concerned) if the country of the latter had joined in their enactment. This way lies progress, for when law or custom that is arbitrary and unnatural becomes hateful to the few who realize that they and their fellows are bound hand and foot thereby, means are generally found to open the eyes of the blind and substitute something that is sane and reasonable.
From an inquiry into the character of articles which have been or are now designated contraband, we naturally pass to a brief discussion of the carriage of contraband, which has had some reference in preceding summaries. Here, as when considering what is contraband, we are at once plunged into so much confusion that it is a relief to quote the London Declaration, rather than to attempt to analyze policies and opinions which preceded it.
By this instrument goods which, if bona fide intended for another neutral, cannot be meddled with by a belligerent, are open to confiscation:
1. If they fall within the list characterized as absolute contraband, when it is evident that the carrying vessel: (a) Is bound for an enemy port; (b) is sailing for an enemy port although her papers indicate a neutral destination; (c) is sailing for a neutral harbor with papers suggesting neutral consignees, but is arranging to stop en route at an intermediate port or to meet armed enemy forces:
2. If they fall within the list characterized as conditional contraband when the carrying vessel: (a) Is destined to an enemy port; (b) is so clearly out of her course to the neutral port indicated in her papers as to require adequate explanations which she is unable to give.
Unfortunately it is too early to comment satisfactorily upon the manner in which belligerent states are interpreting these rules and the attention which they receive. With the general law of contraband what it is, however, it does not take a very astute observer to appreciate that in the hands of tions at war they may become very oppressive and are so framed as to serve belligerent interests. Thus the combatant, who fails to intimidate neutrals from attempting to conduct legitimate trade with the enemy by posting endless lists of contraband, can overhaul cargoes after they are once afloat and avoid the risk of letting prohibited articles come into enemy hands.
It is in connection with the carriage of contraband that we come in touch with the doctrine of the "continuous voyage" as a so-called extension of the general law which we are considering. This is nothing more than the application of existing contraband rules to cases that, because of subterfuge or trickery, are claimed to be immune. It comes into play when a ship loaded with contraband puts into a neutral port designated in her papers with the design of either transshipping the cargo to an enemy destination ("continuous transports") or of herself conveying it thither.
At the time of the Civil War the United States courts, handling cases which were frequent and annoying (see notably the Bermuda and the Peterhof), gave the first clear expression to a practice that was already, familiar, though contested by both British and Continental authorities. So convincing were their reasonings that, as has been the case with scientists and physicists who have first stated in terms that which others vaguely appreciated, they received credit for emanating something new, and some ingenious theories have recently been propounded to endorse questionable practices on the presumption that the United States Supreme Court had furnished precedents which justify an expansion of belligerent activities.
This is far from the fact. All that the United States Supreme Court did in the period referred to was to deny most emphatically that any hocus-pocus like landing a contraband cargo in Matamoras or Nassau for the sake of making it immune, before delivering it in Florida, would be of any effect in making the commodities in question unobjectionable. One does not have to be a learned justice to see the sanity of such a position, but one does require rare scholarly abilities to make a statement which will cut through the technical objections of legal practitioners. That ability our courts supplied to such good effect that not only eminent publicists upon the Continent accepted their decisions as authoritative, but British ministers and jurists shifted their attitude and adopted a course in line with what is now referred to generally as an American doctrine.