cargo might be regarded, according to the practice of the United States, as conditional contraband, but the opposition of other States to the position of the United States led to the abandonment of this position in 1909, provided the Declaration of London should be ratified.

Article 35 of the Declaration of London and the general report upon the same shows that conditional contraband is not liable to capture under the declaration if destined for discharge in a neutral port.

ARTICLE 35.-Conditional contraband is not liable to capture, except on board a vessel which is bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and which is not to discharge it at an intervening neutral port.

The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is met with clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.

As has been said above, the doctrine of continuous voyage is excluded for conditional contrabrand. This then is liable to capture only if it is to be discharged in an enemy port. As soon as the goods are documented to be discharged in a neutral port they can not be contraband, and there is no examination as to whether they are to be forwarded to the enemy by sea or land from that neutral port. This is the essential difference from absolute contraband.

The ship's papers furnish complete proof as to the voyage of the vessel and as to the place of discharge of the cargo; it would be otherwise if the vessel were encountered having manifestly deviated from the route which she should follow according to her papers, and unable to give sufficient reasons to justify such deviation.

This rule as to the proof furnished by the ship's papers aims to prevent claims lightly raised by a cruiser and giving rise to unjustifiable captures. It must not be understood in a manner too absolute which would make all frauds easy. Thus it does not hold good when the vessel is encountered at sea having manifestly deviated from the route which she ought to have followed, and unable to justify such deviation. The ship's papers are then contradicted by the actual facts and lose all value as evidence; the cruiser will be free to decide according to the case. In the same way, the visit and search of the vessel may reveal facts which prove in an irrefutable manner that the destination of the vessel or the place of discharge of the goods is incorrectly entered in the ship's papers. The commander of the cruiser is

then free to judge of the circumstances and captures or does not capture the vessel according to his judgment. To resume, the ship's papers are proof, unless the facts show their evidence to be false. This limitation of the value of the ship's papers as proof seems self-evident and not to need special mention. It has not been the aim to appear to weaken the force of the general rule, which forms a safeguard for neutral trade.

Because a single entry is shown to be false, it does not follow that the force of the ship's papers as evidence is nullified as a whole. The entries against which no allegation of fraud can be proved retain their value. (International Law Topics-Naval War College-1909, p. 85.)

British opinion.-Norman Bentwich, discussing the operation of article 35 from its application particularly to Great Britain, says:

But when the enemy country has ports of its own the exclusion of the doctrine of continuous voyage from the subject of conditional contraband is justified by reason of the nature of the traffic.

One might judge from the comments of some critics of the declaration that this limitation of the right to capture conditional contraband was an outrageous curtailment of our belligerent rights. Yet, in fact, we have never effectually exercised the right to capture cargoes on their way to the enemy country via neutral ports, even when they were absolute contraband; and Lord Stowell explicitly and emphatically repudiated the practice. The declaration now entitles us to do so in that contingency, but rejects the claim which has been advanced by others to capture cargoes of conditional contraband which are destined to neutral ports. It is submitted that the limitation of the right of capture is both reasonable and to our benefit. Conditional contraband cargoes are ex hypothesi such as might be regularly required by the neutral population, and it would always be possible for the consignor to direct them in the first place to a neutral consignee in the neutral country, who might forward them at a favorable opportunity to the belligerent country. And to allow capture upon suspicion that an eventual belligerent destination was intended would be an excessive interference with neutral trade, which would inevitably cause friction. Cargoes of absolute contraband, on the other hand, being of such things as are exclusively valuable in war, would probably find their way, in nine out of ten cases, from a neighboring neutral to a belligerent country; and therefore capture is allowed, though their immediate destination is seemingly innocent, when there is evidence that this is not the final destination. The effect of the restriction of capture in cases of conditional contraband would be, if we were

at war, to give immunity to all cargoes of the kind consigned to England via neutral ports, and to render them liable to capture only during their transit of the narrow seas which separate us from our continental neighbors, some of whom are in any case I likely to be neutral. Hence, while the restriction would diminish our power of capturing conditional contraband destined for a continental enemy in very exceptional circumstances only, it would regularly benefit us when at war by diminishing his power of interfering with our supplies which must be brought by sea. The present practice of nations has not hitherto definitely accepted the doctrine of continuous voyage in its relation to contraband; as has been mentioned, the American courts put it into force amid protests during the Civil War, and England claimed to enforce it during the Boer War, but did not press her claim because of German opposition to it. The declaration assures us the benefit of the doctrine as belligerents in regard to absolute contraband, which is the trading by the neutral that more seriously assists in war; and it secures us both as belligerents and neutrals against any attempt by a foreign power to apply the doctrine to other neutral cargoes. (The Declaration of London, p. 75.)

Protection by the fleet of the United States. In the proposed situation the merchant vessel of State Y which is neutral requests protection from the fleet of the United States which is belligerent. The commanding officer replies that he has no authority to afford this protection. To afford such protection would usually be outside the competence of a naval officer unless instructed or acting under treaty provisions. If the United States fleet should afford protection the act would be of the nature of belligerent convoy. A neutral vessel which accepts belligerent convoy loses her neutral character according to the present general consensus of opinion.

The neutral vessel may not itself resist visit and search, but by sailing under the protection of a belligerent there is on the part of the neutral vessel a constructive resistance which would make the vessel liable to condemnation even though otherwise innocent. It is not to be inferred that any action which the United States fleet might take in pursuing the enemy in the neighborhood or in attempting to prevent interference with commerce if in the nature of the prosecution of the war and not simply an act of convoy, would necessarily involve the merchant

vessel in any liability. As the merchant vessel might become liable to more severe treatment if accorded protection by the United States fleet and as the United States fleet could attack the enemy, in any case, if deemed at the time a proper military movement there would seem to be nothing to be gained for the United States fleet or for the merchant vessel in extending the protection requested.

Relation of State Y.-The capture of the merchant vessel of State Y which is carrying goods of the nature of conditional contraband to Habana would, as has been shown, not be justified under the provisions of the Declaration of London, which is assumed to be binding, unless Habana is regarded as a belligerent port when the United States is at war. As Cuba is an independent State in the family of nations, and as it has not made any alliance which makes it a party to a war in which the United States is involved, Cuba's relations would be those of a neutral State and Habana would be a neutral port.

Résumé. From the consideration of the nature of leased territory it is seen that the belligerency of the lease-holding State does not affect the relations of the State which grants the lease except so far as is stated in the lease.

The jurisdiction over the leased territory is determined by the terms of the lease. A protecting State may go to war without involving the State protected in hostilities. The relations between the United States and Cuba are such that Cuba may remain neutral in a war to which the United States is a party in the same manner as Mexico might remain neutral.

The mere fact of proximity to the United States would in both cases make necessary somewhat greater care in the preservation of neutrality. Conditional contraband would not, under the declaration of London, when bound for a neutral port on a neutral vessel be liable to capture. The extension of protection to a neutral merchant vessel by a belligerent war vessel would make an innocent merchant vessel liable to penalty. It would be best to allow the neutral State to protect its own merchant, ves

sels and the interest of all States not engaged in the war would tend to cause the belligerents to respect neutral rights.

SOLUTION.

Habana is not a hostile destination when the United States and State X are at war and other States are neutral.

The position taken by the commanding officer of the fleet of the United States is correct.

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