No CrossRef data available.
Article contents
Early Cases on the Doctrine of Continuous Voyages
Published online by Cambridge University Press: 04 May 2017
Extract
So much has been written on the doctrine of continuous voyages as a principle of international law, and the authorities, especially those in English, have been so thoroughly exhausted, that another article upon the same subject should not be intruded upon readers except perhaps by reason of a novel treatment of the subject or the presentation of new facts. The latter will, it is hoped, furnish sufficient excuse for the appearance of this paper.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Society of International Law 1910
References
1 Elliott: The Doctrine of Continuous Voyages, this JOURNAL, 1:96.
2 Ibid., 75 et aeq.
3 l C. Rob. 154; see also Frederick Molke, l C. Rob. 86, and neptunus, l C. Rob. 170.
4 Potsdam, 4 C. Rob. 89.
5 Betsey (1798), l C. Rob. 93; Juffrow Maria Schroder, l Roscoe’s Eng. Pr.Cas. 356, note; Otto & Olaf (1855), Spinks 257.
6 Comet, Edw. 32.
7 General Hamilton, 6 C. Rob. 61.
8 Potsdam, supra.
9 Sir William Scott in Frederick Molke, l C. Rob. 86; Vrouw Judith, l C. Rob. 150.
10 Fortuna (1803), 5 C. Bob. 27; Arthur (1810), Edw. 202; Hurtige Hane (1799), 2 C. Rob. 124; Charlotta (1810), Edw. 252.
11 Juno (1799), 2 C. Rob. 116.
12 Betsey (1799), l C. Rob. 332; Shepherdess (1804), 5 C. Rob. 262; Spes and Irene (1804), 5 C. Rob. 76.
13 jonge Pieter (1801), 4 C. Rob. 79. See conversely Stert (1801), 4 C. Rob. 65, where goods were sent from a blockaded port by inland navigation to an open port, where they were laden on shipboard. Similarly, Ocean (1801), 3 G. Rob. 297.
14 Newtralitet (1805), 6 C. Bob. 30.
15 James Cook (1810), Edw. 261.
16 James Cook (1810), Edw. 261, dictum; Imina (1800), 3 0. Eob. 167.
17 Yeaton v. Fry, 5 Cranch 335.
18 Twiss, 3 Law. Mag. and Rev., 4th Series; Oppenheim, Int. Law; Phillimore, Int. Law; Halleck, Int. Law, etc.
19 This JOURNAL, 1:77 et seq.
20 7 Fed. Cas. 868.
21 19 Fed. Cas. 54.
22 Blatchf, Prize Cas. 387.
23 2 Wall. 135.
24 3 Wall. 514.
25 Blatchf. Prize Cas. 463; 5 Wall. 28.
26 Blatchf. Prize Cas. 434.
27 This JOUENAL 1:104.
28 Mercurius (1808), Edw. 53.
29 Maria (1805), 6 C. Rob. 201; Charlotte Sophia (1806), 6 C. Rob. 204, note; Lisette (1806), 6 C. Rob. 394; Wheaton, Int. Law, Danașs ed., p. 669, note; Harcourt (Historicus), Pamphlet on Nassau Trade, 1863.
30 The reverse of this group of cases arose during the Civil War in the famous case of the Peterhof (1866), 5 Wall. 28. This was the case of a cargo, partly composed of contraband goods, bound from London to the neutral port of Matamoras, situated opposite the Confederate town of Brownsville, and on the south bank of the Rio Grande river, which was under blockade by the Union fleet. She was captured south of Cuba, while en route for the Rio Grande river, and both ship and cargo were condemned in the lower court, but on appeal, the question of blockade being eliminated from the case, the United States Supreme Court restored the ship and condemned the cargo, on the ground of carrying contraband whose ultimate destination was Brownsville. This JOURNAL, 1:81, 82. Though, as we have seen, the connection between the doctrine of continuous voyages and blockade running appears to have been recognized long prior to the Civil War, still among all the English and American cases examined one has not been found in which the doctrine was directly and exclusively applied to a purely blockade case.
31 l Wheaton 382 (1816).
32 Not reported.
33 5 C. Rob. 395 (1806).
34 This JOURNAL, 1:74, 75.
35 4 C. Rob. 33 (1801).
36 Twendo Brodre (1801), 4 G. Rob. 33, a t p. 38.
37 Franklin (1810), 3 C. Rob. 217.
38 Imina, supra.
39 Franklin (1801), 3 C. Rob. 217. Intention, though apparently the eontrolling element in the offense, is not, however, alone sufficient. There must be an overt act, namely, the sailing for an enemy port. Trende Sostre (1807), 6 C. Rob. 391, note.
40 Imina (1800), 3 C. Rob. 167.
41 Per Sir William Scott in Imina, supra.
42 Introduction to Takahashi’s International Law during Chino-Japanese War, p. xx; quoted by Justice Elliott in this JOURNAL., 1:73.
43 The Original Manuscript Books, supra; Burrell’s Reports.
44 Burrell 164.
45 This JOURNAL, 1:62.
46 2 C. Rob. 146.
47 Duer, Mar. Ins., I, p. 763. See to same effect I Wheaton 514.
48 l Wheaton 508.
49 6 C. Rob., note I, p. 112.
50 Duer, Mar. Ins., I, p. 763.
51 l Wheaton 515, quoting Pinckney; also quoted in Duer, Mar. Ins., I, p. 764
52 Original Manuscript Books of “Appeal Cases in Prize Causes,“ Wars of 1744, 1756, etc., in the Library of Congress, .p. 18. Burrell, p. 210, does not give the decision verbatim.
53 Op. cit.
54 Resolutie, Vriendschap, Den Amstel, Maria Agnes, Johanna Maria, De Hoop, Vryheidt, Maria Johanna, Anna Elizabeth, Glocyande Star, Juffrotw, Alida, Isaac, Vrouw Anna, Amsterdam, De Garaed, Geregtigheit, Speedwell, etc., op. cit. also partially reported in Burrell.
55 See Burrell 220.
56 Maria Agnes, Glocyande Star, Isaac, Maria Johanna, op. cit.
57 Good Christian (1760), Burrell 216; De Jonge Isaac (1763), op. cit. 216.
58 Hope (1764), Burrell 217.
59 Johanna Margretta (1761), Burrell 218.
60 Vrow Clara Magdalena (1758), Original Manuscript Books, supra.
61 Burrell 217 (1760).
62 St. Juan Baptista (1758), Original Manuscripts Books, supra; Maria Theresa (1759), Burrell 204; Novum Aratrum (1759), Burrell 205; De Johanna Arnoldina (1759), Original Manuscripts Books, supra; Helena (1761), Burrell 223. See also Jesus (1761), Burrell 164.
63 I W. Black. 313; cited in 1 Wheaton 521. Subsequently in Brymer v. Atkins, (1789) l H. Black, 191, Lord Loughborough incidentally and briefly reviewed the history of the rule of the war of 1756. This rule was always strongly opposed by America both on the ground of principle and on the ground of its apparent abandonment by England during the American Revolution and the contemporaneous war with France. Writers, however, appear to disagree on whether the rule was actually abandoned at that time. Dr. Robinson and Mr. Pinckney believe it was abandoned, the former on the theory that the French had by official order thrown open their colonial trade to neutrals generally, the latter on the decisions of the Lords of Appeal in the Tiger and the Copenhagen in 1782. (1 Wheaton 525 et seq.) Wheaton, on the other hand, quotes from Pinckney and adds that the official order is not extant and that the House of Lords applied the rule in the case of the Katharina in 1783. Duer agrees with Wheaton (1 Mar. Ins. 765).
64 This JOURNAL, 1:68.
65 law Mag. and Rev. (4th S.), pp. 1–13.
66 6 C. Rob., Appendix, note II.
67 2 C.Rob. 186 (1800).
68 2 C. Rob. 361 (1800).
69 C. Rob. 365 (1805).
70 5 C. Rob. 385 (1806).
71 Edw. 17 (1808).
72 Upton, Law of Nations, 1863; Chitty, Law of Nations, 1812; Hazelitt and Roche, Law of Nations, 1854; Wheaton, Law of Nations, Dana’s ed., 1866; Westlake, International Law, 1907; Hall, International Law, 1895; Woolsey, International Law, 1891; Kentșs Commentaries, vol. I, p. 84; Halleck, International Law, ed. by Sir Sherston Baker; Oppenheim, International Law; Phillimore, International Law. Other authorities consulted scarcely more than mention the doctrine, if indeed they do so much: Pratt, Story on Prize Courts, 1854; Lushington, Naval Prize Law, 1866; Maine, International Law, 1888; Holland, Studies in International Law; Roberts, Admiralty and Prize; Holland, Prize Law; Baty, International Law; Wildman, International Law, etc.
73 Not reported.
74 5C. Rob. 365 (1805).
75 Not reported.
76 Admiralty, 23 July, 1805; not reported.
77 Admiralty, Aug. 1, 1805; not reported.
78 Thomyris (1808), Edw. 17; Jonge Pieter (1801), 4 C. Rob. 79; see also Minerva (1801), 3 C. Rob. 229; Wasser Hundt (1810), 1 Dods. 271, note; La Flora (1805), 6 C. Rob. 1; Argo (1854), Spinks 52.
79 Burrell, 229, lists other cases to the same purpose from 1763 to 1765, but these may have been affected by the declaration of war by England against Spain, Jan. 2, 1762.
80 Burrell, 228.
81 Burrell, 178.