Ambassador Page to Secretary Bryan, telegram 1627, received Feb. 12, 1915, MS. Department of State, file 763.72112/716; 1915 For. Rel. Supp. 324, 331. See post, pp. 42-43.

In the British "Declaration of London Order in Council, 1916", dated Mar. 30, 1916, the following provisions were set forth:

"1. The provisions of the Declaration of London, Order in Council No. 2, 1914, shall not be deemed to limit or to have limited in any way the right of His Majesty, in accordance with the law of nations, to capture goods upon the ground that they are conditional contraband, nor to affect or to have affected the liability of conditional contraband to capture, whether the carriage of the goods to their destination be direct or entail transshipment or a subsequent transport by land.

"2. The provisions of Article 1(ii) and (iii) of the said Order in Council shall apply to absolute contraband as well as to conditional contraband.

"3. The destinations referred to in Article 30 and in Article 33 of the said Declaration shall (in addition to any presumptions laid down in the said Order in Council) be presumed to exist, if the goods are consigned to or for a person, who, during the present hostilities, has forwarded imported contraband goods to territory belonging to or occupied by the enemy.

"4. In the cases covered by Articles 2 and 3 of this Order, it shall lie upon the owner of the goods to prove that their destination was innocent." Enclosure in telegram 4088 from Ambassador Page to Secretary Lansing, Apr. 4, 1916, MS. Department of State, file 763.72112/2398; 1916 For. Rel. Supp. 361.

With reference to the meaning of article 1 of the above order, see The Kronprinsessan Margareta, [1921] 1 A.C. 486, 507-509, VIII Ll. Pr. Cas. 241, 267-269. See also Briggs, Doctrine of Continuous Voyage (1926) 111-112.

The British "Maritime Rights Order in Council, 1916" withdrawing the Declaration of London and stating that it continued to be the intention of the British Government to exercise its belligerent rights at sea in strict accordance with the law of nations, contained the following provisions: "(a) The hostile destination required for the condemnation of contraband articles shall be presumed to exist, until the contrary is shown, if the goods are consigned to or for an enemy authority, or an agent of the enemy State, or to or for a person in a territory belonging to or occupied by the enemy, or to or for a person who, during the present hostilities, has forwarded contraband goods to an enemy authority, or an agent of the enemy State, or to or for a person in territory belonging to or occupied by the enemy, or if the goods are consigned 'to order,' or if the ship's papers do not show who is the real consignee of the goods.

"(b) The principle of continuous voyage or ultimate destination shall be applicable both in cases of contraband and of blockade."

The Department of State instructed the Ambassador to Great Britain to inform the British Foreign Office that the rules set forth in this order were at variance with the law and practice of nations in several respects and that the United States reserved its rights in the premises.

Order in Council of July 7, 1916, transmitted with despatch 4181 from Ambassador Page to Secretary Lansing, July 10, 1916, and Mr. Lansing to the Chargé d'Affaires in Great Britain (Laughlin), no. 4191, Sept. 18, 1916, MS. Department of State, file 763.72112/2753; 1916 For. Rel. Supp. 413-414, 446 447.

For regulations of Great Britain of July 31, 1940, establishing presumptions as a matter of reprisal against Germany, see post, pp. 141-142.

The French instructions of Mar. 8, 1934 provide in article 46 that articles of conditional contraband destined for the use of the armed forces or administration are subject to condemnation whether or not the transporting vessel is destined for a neutral port or the cargo is documented for such port. An absolute presumption of enemy destination is established when the goods are consigned to an enemy agent, whether in an enemy or neutral port, or are destined to an enemy fortified place or base of supply (art. 48). When the enemy government has taken measures to requisition or to control the distribution of certain goods, a rebuttable presumption is established (art. 47) in the following cases: (1) when the goods are documented to an enemy port; (2) when they are documented to a neutral port and the vessel is first to touch at an enemy port or meet the enemy forces; (3) when they are documented to a neutral port which habitually serves as a port of transit to the enemy country and the goods are consigned to order or the consignee in the neutral country is not named. Recueil général périodique et critique des décisions, conventions et lois relatives au droit international public et privé (1935), pt. VI, pp. 3-4.

In the case of the City of Joliet the French Prize Council on May 22, 1940 held that copper consigned "to order" to the neutral port of Antwerp should be condemned, since its ultimate German destination was to be presumed from a consignment "to order" to a port serving as a port of transit for Germany. Viktor Böhmert, "Die Rechtsprechung des französischen Prisenrats im gegenwärtigen Krieg bis zum Waffenstillstand", XXV Zeitschrift für Völkerrecht (1941) 45, 52.

In the case of the Tormes the French Prize Council held on June 5, 1940 that a cargo of lemons shipped "to order" and destined for Genoa should be condemned as conditional contraband. The Council found that Genoa was a customary port of transit for goods bound to Germany and, in view of the German Government's control of food, held that the conditional contraband should be treated as if it had been consigned to the German Government. Ibid. 45, 54.

A cargo of hides shipped before the outbreak of war in 1939 from East Africa to the Italian port of Trieste and consigned "to order" for the Yugoslav branch of a firm in Czechoslovakia was held by the French Prize Council, in the case of the Edda, on May 15, 1940, to be contraband with an enemy destination. The Prize Council referred to Czechoslovakia as territory under enemy occupation and held that the presumption of enemy destination arose from the consignment "to order" to a neutral port serving as a normal port of transit to enemy territory. Ibid. 45, 52.

The Italian War Law of July 1938 continues to adhere to that country's abandonment of the distinction between absolute and conditional contraband (see Prize Regulation of Mar. 25, 1917, title IV, Gazzetta ufficiale, Apr. 26, 1917, no. 98, pp. 2110, 2113). A hostile destination is considered (art. 161) to be the enemy forces or territory belonging to or occupied by the enemy. A rebuttable presumption of such destination is established when the documents indicate that the goods are consigned to the enemy forces or are to be disembarked in an enemy port or one occupied by its forces. The presumption applies when the goods are destined to a neutral port but the vessel approaches or touches at a port of or occupied by the enemy, or meets the enemy armed forces before arriving at the neutral port. Gazzetta ufficiale, Sept. 15, 1938, no. 211.

The German Prize Ordinance of Aug. 28, 1939 provides in article 24(2): "On condition of reciprocal procedure on the part of the enemy the articles and materials named in par. 1 [conditional contraband] will not be considered as contraband if they are to be discharged in a neutral port."

Article 25 sets up presumptions conforming to those of article 33 of the Declaration of London (post, p. 64). Reichsgesetzblatt (1939) 1588; Department of Commerce, III Comparative Law Series (1940, no. 1) 35, 39-40. In reply to a protest by the United States against the British practice of detaining American vessels, in which it was stated that "It is . . . a matter of deep regret that . . . the British Government have not materially changed their policy and do not treat less rigorously ships and cargoes passing between neutral ports in the peaceful pursuit of lawful commerce, which belligerents should protect rather than interrupt" (see post, p. 80), the British Foreign Office stated in a note of February 10, 1915:

No one in these days will dispute the general proposition that a belligerent is entitled to capture contraband goods on their way to the enemy; that right has now become consecrated by long usage and general acquiescence. Though the right is ancient, the means of exercising it alter and develop with the changes in the methods and machinery of commerce. A century ago the difficulties of land transport rendered it impracticable for the belligerent to obtain supplies of sea-borne goods through a neighboring neutral country. Consequently the belligerent actions of his opponents neither required nor justified any interference with shipments on their way to a neutral port. This principle was recognized and acted on in the decisions in which Lord Stowell laid down the lines on which captures of such goods should be dealt with.

The advent of steam power has rendered it as easy for a belligerent to supply himself through the ports of a neutral contiguous country as through his own, and has therefore rendered it impossible for his opponent to refrain from interfering with commerce intended for the enemy merely because it is on its way to a neutral port.

No better instance of the necessity of countering new devices for despatching contraband goods to an enemy by new methods of applying the fundamental principle of the right to capture contraband can be given than the steps which the Government of the United States found it necessary to take during the American Civil War. It was at that time that the doctrine of continuous voyage was first applied to the capture of contraband, that is to say, it was then for the first time that a belligerent found himself obliged to capture contraband goods on their way to the enemy, even though at the time of capture they were en route for a neutral port from which they were intended subsequently to continue their journey. The policy then followed by the Government of the United States was not inconsistent with general principles already sanctioned by international law,.

and met with no protest from His Majesty's Government, though it was upon British cargoes and upon British ships that the losses and the inconvenience due to this new development of the application of the old rule of international law principally fell. The criticisms which have been directed against the steps then taken by the United States came, and come, from those who saw in the methods employed in Napoleonic times for the prevention of contraband a limitation upon the right itself, and failed to see that in Napoleonic times goods on their way to a neutral port were immune from capture, not because the immediate destination conferred a privilege, but because capture under such circumstances was unnecessary.

The most difficult questions in connection with conditional contraband arise with reference to the shipment of foodstuffs. No country has maintained more stoutly than Great Britain in modern times the principle that a belligerent should abstain from interference with the foodstuffs intended for the civil population. The circumstances of the present struggle are causing His Majesty's Government some anxiety as to whether the existing rules with regard to conditional contraband, framed as they were with the object of protecting so far as possible the supplies which were intended for the civil population are effective for the purpose, or suitable to the conditions present. The principle which I have indicated above is one which His Majesty's Government have constantly had to uphold against the opposition of continental powers. In the absence of some certainty that the rule would be respected by both parties to this conflict, we feel great doubt whether it should be regarded as an established principle of international law.

Secretary Bryan to Ambassador Page, telegram 836, Dec. 26, 1914, MS. Department of State, file 763.72112/545a; Mr. Page to Mr. Bryan, telegram 1627, received Feb. 12, 1915, ibid. /716; 1914 For. Rel. Supp. 372, 373; 1915 For. Rel. Supp. 324, 327-328, 332.

In holding that certain cargoes of foodstuffs (primarily pork products) shipped by American firms on Scandinavian vessels and destined to Copenhagen which were seized by the British, were liable to condemnation as contraband, Sir Samuel Evans said:

Two important doctrines familiar to international law come The Kim prominently forward for consideration: the one is embodied in the rule as to "continuous voyage," or continuous "transportation"; the other relates to the ultimate hostile destination of conditional and absolute contraband respectively.

The doctrine of "continuous voyage" was first applied by the English Prize Courts to unlawful trading. There is no reported case in our Courts where the doctrine is applied in terms to the carriage of contraband; but it was so applied and extended by the United States Courts against this country in the time of the American Civil War; and its application was acceded to by the British Government of the day; and was, moreover, acted upon

by the International Commission which sat under the Treaty between this country and America, made at Washington on May 8, 1871, when the commission, composed of an Italian, an American, and a British delegate, unanimously disallowed the claims in The Peterhoff, which was the leading case upon the subject of continuous transportation in relation to contraband goods.

I am not going through the history of it, but the doctrine. was asserted by Lord Salisbury at the time of the South African war with reference to German vessels carrying goods to Delagoa Bay, and as he was dealing with Germany, he fortified himself by referring to the view of Bluntschli as the true view as follows: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war, and confiscation will be justified.' It is essential to appreciate that the foundation of the law of contraband, and the reason for the doctrine of continuous voyage which has been grafted into it, is the right of a belligerent to prevent certain goods from reaching the country of the enemy for his military use.

A compromise was attempted by the London Conference in the unratified Declaration of London. The doctrine of continuous voyage or continuous transportation was conceded to the full by the conference in the case of absolute contraband, and it was expressly declared that "it is immaterial whether the carriage of the goods is direct, or entails transhipment, or a subsequent transport by land."

As to conditional contraband, the attempted compromise was that the doctrine was excluded in the case of conditional contraband except where the enemy country had no seaboard. As is usual in compromises, there seems to be an absence of logical reason for the exclusion. If it is right that a belligerent should be permitted to capture absolute contraband proceeding by various voyages or transport with an ultimate destination for the enemy territory, why should he not be allowed to capture goods which, though not absolutely contraband, become contraband by reason of a further destination to the enemy Government or its armed forces? And with the facilities of transportation by sea and by land which now exist the right of a belligerent to capture conditional contraband would be of a very shadowy value if a mere consignment to a neutral port were sufficient to protect the goods. It appears also to be obvious that in these days of easy transit, if the doctrine of continuous voyage or continuous transportation is to hold at all, it must cover not only voyages from port to port at sea, but also transport by land until the real, as distinguished from the merely ostensible, destination of the goods is reached.

I have no hesitation in pronouncing that, in my view, the doctrine of continuous voyage, or transportation, both in relation to carriage by sea and to carriage over land, had become part of the law of nations at the commencement of the present war, in