Page:The Green Bag (1889–1914), Volume 16.pdf/809

 750

Under the present understanding of the law of nations you cannot generally take the proceeds on the return journey.'' 1 The most important cases bearing on the subject of contraband which have so far* arisen during the present war are those of the Knight Commander,1 the Arabia, and the Calchas—all of which are cases of prizes captured by the Vladivostok squadron in the latter part of July, 1904. The Knight Commander was a British steamer with a general cargo including flour and railway material from New York con signed to various Eastern ports, viz., Manila, Shanghai and Yokohama. She was sunk and afterwards condemned by a Russian prize court. The questions involved in her destruction as a neutral prize have been dis cussed in a previous paper.4 Our conclus"The rule is different in the case of an at tempted breach of blockade, in which case the outward and return voyages are regarded as parts of one transaction and the offence clings to the blockade runner during the return voyage. See Lord Stowell's decision in the case of the Juffrow Maria Shrocder, 3 Rob. 153. But in the case of contraband the return voyage is regarded as a separate and. therefore, innocent expedition. In the case of the Nancy (3 Rob. 127), Lord Stowell held that the return voyage will not be re garded as a Depárate and innocent expedition if the "outward and homeward voyages are but parts of one transaction, conducted by the same persons and planned from the beginning as one adventure, and if on the outward voyage contra band goods and fraudulent papers are carried." Cited by Lawrence, Principles, p. 616. But, as Lawrence says, "it is somewhat doubtful whether this view would be acted upon at the present time. Continental publicists condemn it as an undue extension of belligerent rights, and the British Admiralty Manual contents itself with the statement that a commander should detain a ves sel he meets on her return voyage with such a record as we have described behind her." See Holland's Manual, pp. 23-24. "October 5, 1904. 'The German steamer Thea, which was sunk by the Vladivostok fleet at about the same time as the Knight Commander, is omitted because no facts have come to light which would make a discussion of this case profitable, or even possi ble. No question appears to have been raised re garding the legality of the capture of the Chelten ham early in June. Tt was said to have been caught in the act of conveying railway sleepers to Korea. 'See THE GRKKN ВАС for October. 1904.

ion was that there existed, under the circumstances, no justification for her destruction, even if she carried con traband. The question of apology and indemnity for the destruction of the ves sel is one which primarily concerns the British Government, but the American owners of the cargo would in any case seem to be entitled to compensation or restitution even in the case of such portion of her cargo as consisted of contraband, inasmuch as it was illegally destroyed before condemna tion by a properly constituted prize court." The cases of the Arabia and the Calchas may conveniently be considered in connec tion with each other. The Arabia was a German vessel with a cargo composed largely of American flour and railway ma terial (steel rails) consigned to Hong Kong ' and Japanese ports. There appears "It was reported at the trial that a letter book, which was found in the captain's cabin, contained copies of correspondence, proving that the cargo (probably the railway material) on board the Knight Commander was really destined for Che mulpo. In that case, its confiscation as contra band of war by a prize court would have been en tirely justifiable. See London Times (weekly ed.) for August 12, 1904. The Arabia appears, at the time of her seiz ure, to have been on her way to the neutral port of Hong Kong, but this fact would by no means save her cargo from condemnation if it could be shown that its real or ultimate destination was a belligerent one. The doctrine of continuous voy age has, .however, no applicability to this case, and, strangely enough, no case calling for its ap plication seems thus far (October 5, 1904.) to have arisen. The doctrine is undoubtedly sound in principle, although liable to great abuse in practice. The doctrine of continuons voyage was first applied to contraband by a French prize court (in the case of the I'rou HoiKvina) during the Crimean War in 1855, but it did not attract gen eral attention until the extension and publicity given to the doctrine by the decisions of the Su preme Court of the United States (in the cases of Peterhoff, etc.). at the close of the Civil War. The doctrine in question was approved by the Italian Council of Prizes in 1896 (in the case of the Doelwyk), and was sanctioned by the Institute of International Law at its session in Venice the same year. The attempt of England to enforce the doctrine (in the cases of the Bundcsrath. ffr.,) during the Boer War in IQOO failed, however, ow ing to the determined opposition of Germany. On