even on a destination to ports of mere mercantile naval equipment; Amsterdam is a port both of great mercantile and military equipment."

Condemned.

On prayer for the freight and expenses of the ship, the King's Advocate contended that freight could not be given in a case of a contraband cargo.

Arnold and Robinson: "The Court will not think it necessary, to apply that rule, in its utmost rigor, in such a case as the present, where the contraband articles are but in a small quantity, amongst a variety of other articles."

The Court acceded.

Freight and expenses given.

(C. Robinson: Admiralty Reports, vol. III, pp. 108-09.)

HYDROAEROPLANES (1915)

The Secretary of State to the German Ambassador

DEPARTMENT of State, WASHINGTON, January 29, 1915.

Excellency: I have the honor to acknowledge the receipt of Your Excellency's note of the 19th instant, and in reply have to inform you that the statements contained in Your Excellency's note have received my careful consideration in view of the earnest purpose of this Government to perform every duty which is imposed upon it as a neutral by treaty stipulation and international law.

The essential statement in your note, which implies an obligation on the part of this Government to interfere in the sale and delivery of hydroaeroplanes to belligerent powers, is: "There is no doubt that hydroaeroplanes must be regarded as war vessels whose delivery to belligerent States by neutrals should be stopped under Article 8 of the 13th Convention of the Second Hague Conference of October 18, 1907."

As to this assertion of the character of hydroaeroplanes I submit the following comments: The fact that a hydroaeroplane is fitted with apparatus to rise from and alight upon the sea does not in my opinion give it the character of a vessel any more than the wheels

attached to an aeroplane fitting it to rise from and alight upon land give the latter the character of a land vehicle. Both the hydroaeroplane and the aeroplane are essentially air craft; as an aid in military operations they can only be used in the air; the fact that one starts its flight from the surface of the sea and the other from the land is a mere incident which in no way affects their aerial character.

In view of these facts I must dissent from Your Excellency's assertion that "there is no doubt that hydroaeroplanes must be regarded as war vessels," and consequently I do not regard the obligations imposed by treaty or by the accepted rules of international law applicable to air craft of any sort.

In this connection I further call to Your Excellency's attention that according to the latest advices received by this Department the German Imperial Government include "balloons and flying machines and their component parts" in the list of conditional contraband, and that in the Imperial Prize Ordinance, drafted September 30, 1909, and issued in the Reichsgesetzblatt on August 3, 1914, appear as conditional contraband "airships and flying machines" (Article 23, section 8). It thus appears that the Imperial Government have placed and still retain air craft of all descriptions in the class of conditional contraband, for which no special treatment involving neutral duty is, so far as I am advised, provided by any treaty to which the United States is a signatory or adhering power.

As in the views of this Department the provisions of Convention XIII of the Second Hague Conference do not apply to hydroaeroplanes I do not consider it necessary to discuss the question as to whether those provisions are in force during the present war. Accept, etc., W. J. BRYAN. American Journal of International Law, Supplement, July, 1915, pp. 367-68.)

831. CONTINUOUS VOYAGE

THE AMERICAN CIVIL WAR CASES

As originated by Lord Stowell, the doctrine of continuous voyage was applied during the French Revolutionary and Napoleonic wars to neutral vessels engaged in enemy trade ordinarily reserved in time of peace, especially colonial trade with the mother country, and was devised to meet the case of a neutral carrier breaking voyage at a neutral port and afterwards continuing on to the enemy destination with her original cargo.1 All the condemnations

1 In the Polly (C. Robinson's Admiralty Reports, vol. I, p. 361), Sir William Scott had held, February 5, 1800, that the landing of cargo and the payment of duty in the United States constituted a sufficient interruption of the continuity of a voyage to enable a neutral vessel, in spite of the Rule of 1756, to carry a cargo from the colony of a belligerent to the ports of the parent country, and vice versa. The court did not define the conditions of bona-fide importation but, according to Sir William Grant in the later case of the William (see below), the supposition was excluded "that one uniform effect was in all cases, to be ascribed to a given set of circumstances, with which, in different cases they might be found contrasted or combined." (Ibid., vol. v, p. 400.)

In 1805, the American ship Essex took on a cargo of Spanish produce at Barcelona, with intention of putting in at Salem before proceeding to Havana, her destination. At Salem, certain transactions were gone through by which it appeared that customs duties were paid upon the cargo, but which in effect resulted in a nominal payment of $198 (payment having been made by means of a bond which permitted the drawback of most of the duties paid). She was captured on the voyage to Havana and condemned by a British prize court on the ground of continuity of voyage. The existence of an original intention to touch at the intervening port was sufficient.

In a similar case, the Maria, the court referred to this decision as follows: "In the case of the Essex, which was decided by the Court of Appeal, the principle of law, by which such cases are to be decided, was distinctly affirmed. It certainly is not a novel principle; and I [Sir William Scott] cannot but express my surprise, that it should be represented in any place, as I understand it has been, that the principle is new. On the contrary, it is an inherent and settled principle in all cases in which the same question can have come under discussion, that the mere touching at any port without importing the cargo into the common stock of the country, will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port." (The Maria, ibid., vol. v, p. 368.)

The William came before the Lords Commissioners of Appeal in Prize Causes on appeal from the Vice-Admiralty Court at Halifax, where both ship and cargo had been condemned, July 17, 1800. When captured, the William was destined to Bilboa with a cargo of cocoa which had been taken on at La Guaira, a Spanish American port, but the voyage had been broken at Marblehead, in Massachusetts, where the

under the rule were of captures made on the latter part of the voyage; the case of a vessel captured on the first part of such a voyage (that is, from the colonial port of shipment to the neutral cargo had been unladen, and the ship cleaned and repaired, after which most of the cocoa had been reshipped, together with some sugar from Havana belonging to the owners of the ship, Messrs. Hooper of Marblehead. A certificate issued by the collector of customs stated that the vessel "had entered and landed a cargo of cocoa belonging to Messrs. W. & N. Hooper and that the duties had been secured agreeable to law, and that the said cargo had been reshipped on board this vessel bound for Bilboa; and that her cargo, consisting of cocoa, sugar, and fish, was the property of the said W. & N. Hooper." (Ibid., vol. v, p. 386.) The Lords in 1804 allowed the appeal as to the ship and the cargo other than the cocoa, “but directed further proof to be made of the importation of the said cocoa into, and exportation from, the port of Marblehead in America and the payment of duties thereon, within nine months." On these points judgment was given by Sir William Grant, March 11, 1806. The claimants had maintained that the voyage of the William had been from North America to Spain and not direct from a colony of Spain. Thus it became necessary to inquire what constituted a direct voyage. Nothing could depend on "the degree or the direction of the deviation" from the shortest course. Nor did the point of commencement change as often as the vessel stopped in the course of its voyage. Merely shifting the cargo did not necessarily amount to the termination of one voyage and the commencement of another. It might have nothing to do with importation; for instance, it might be done for the purpose of drying the goods or repairing the ship. Hence the opinion of the court, in part:

"The truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction, that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have been ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence, to show the purpose for which the acts were done; but if the evasive purpose be admitted or proved, we can never be bound to accept as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it,

...

"The landing of the cargo, the entry at the custom-house, and the payment of such duties as the law of the place requires are necessary ingredients in a genuine importation; the true purpose of the owner cannot be effected without them. But in a fictitious importation they are mere voluntary ceremonies, which have no natural connection whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage which he has resolved to continue, the appearance of being broken by an importation, which he has resolved not really to make." (Ibid., vol. v, p. 396-97.)

In the case of the cargo of the William the court pointed out that a bond for $1239 had been given in payment of duties, but that the fact had been suppressed that a debenture had been granted "which in effect extinguished almost the whole of the duties that had been previously secured." The contention of the claimants that the cargo had been taken on "with the single view of bringing it to the United States and that they then had no intention of, or expectation of, exporting it in the said schooner to Spain," was considered to be ambiguous. Nothing had happened between the landing and the reshipment to change intention; such change had been

port of call), does not appear to have arisen, though, according to Westlake, "the same principle must have applied . supposing the intention to be proved." (International Law [2d ed., 1913], vol. II, p. 296.)1

During the Civil War the United States had an analogous problem with respect to the blockade of the Confederate ports, and her prize courts gave to the doctrine a new and wider application. In order to increase the chances of successfully running the blockade, it became the practice to ship cargoes from neutral countries to neutral ports in the vicinity of the South, such as Nassau, Matamoras, and ports in Cuba, and thence to introduce them into the Confederacy by transshipment on swift vessels specially designed for the purpose. The object of this new-found commerce became notorious when obscure ports like Nassau, scarcely visited by merchant vessels before the war, suddenly assumed, in volume of trade, the importance of Liverpool or New York. To meet this situation the naval officers of the United States were instructed to seize if a search yielded reasonable evidence that a vessel was engaged "in carrying contraband of war for or to the insurgents, and to their ports directly or indirectly by transshipment, or otherwise violating the blockade"; but if it appeared that she was "in good faith and without contraband actually bound and passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents," she was not to be considered liable to seizure.

made earlier, on the expectation of securing better prices in Spain. But, said the court, "if the continuity of the voyage remains unbroken, it is immaterial whether it be by the prosecution of an original purpose to continue it, as in the case of the Essex, or as in this case, by the relinquishment of an original purpose to have brought it to a termination in America." An intention to import was not equivalent to importation. In the opinion of the court, there was no warrant in previous cases for the doctrine that a mere conformity to technical rules governing importations was sufficient, nor was the decision in the Essex exceptional. Looking into all the cases, Sir William Grant expressed the opinion: "I have shown that there was not one decision in which any such principle had been asserted or implied, and that there were at least two decisions which stood in direct contradiction to it, that in the Freeport in 1803, and that in the William in 1804." (Ibid., vol. v, p. 404.)

Condemnation of that part of the cargo for which further proof had been ordered was accordingly confirmed. (Ibid., vol. v, pp. 385-406.)

1 For a succinct discussion of the doctrine of continuous voyage see Westlake's Collected Papers [Cambridge, 1914), pp. 461-74.