militaires. On the basis of Article 45 of the Declaration of London, the Olympia with its cargo was condemned as good prize.1 In the case of the Svithiod 2 the Judicial Committee of the British Privy Council reversed the decision of the Prize Court of Nova Scotia condemning a neutral vessel which while on a voyage from one neutral port to another, took on board, with the connivance of the captain, an enemy stowaway who was a qualified officer in the German merchant marine, there being no evidence that he was carried at the expense of the German government or that he intended to go to Germany. In the course of his opinion Lord Sumner said:

"Their Lordships are, of course, very fully impressed with the great importance of the whole topic of unneutral service, particularly in view of the fact that the change in the circumstances under which maritime warfare is now carried on is so great since most of the cases relied upon were decided. On some proper occasion it might be necessary to define with very great accuracy the way in which well-known principles should be applied under modern conditions; but it is precisely because their Lordships are so impressed with the importance of the subject, with the high obligations which rest upon neutrals to refrain from all unneutral service, and with the gravity of that breach of duty, if it should occur, that they think it unnecessary, and therefore inexpedient and undesirable, to endeavor to decide any question of law in a case where, in their view, the captors have failed to lay any foundation in fact which would justify the investigation of so important a subject."

The Japanese Prize Court at Sasebo refused to condemn a neutral vessel (Norwegian) which while en route from Shanghai to the United States carried as a supercargo a German doctor who was an army reserve officer who traveled under a false Swiss name and was returning to Germany to rejoin the army. The Prize Court upheld the validity of the capture because of the irregularity of the ship's papers, because of the presence of the German reservist on board and because the ship had on a previous voyage secretly carried the German minister to China from the United States to Shanghai, under a false name. Nevertheless it ordered the release of the vessel and cargo for the reason that at the time of the trial the reservist had been dead for four months.3

See also the case of the Schooner X (ibid., 433), where the French Prize Council condemned on the basis of Article 46 of the Declaration of London a vessel carrying no papers but employed by an enemy government (Turkish) for a military end and which transported to an enemy destination a personnel instructor and certain war materials.

X Lloyd 1; III Br. & Col. Pr. Cas. 574.

The Christian Boles, Feb. 26, 1915. There were also some cases, mostly German, involving the transportation by neutral vessels of freight for belligerent governments under contract. See Verzijl, op. cit., pp. 977 and 987.

There were a number of other instances in which neutral vessels were stopped by belligerent cruisers and persons alleged to be enemy military persons removed therefrom, but the cases were not brought before the Prize Courts.1

Sec. 450. Transportation of Refugees from Enemy Port. Case of the "Hanametal." This case, decided by the Supreme Court of Hong Kong (in prize),2 involved the liability to condemnation of a neutral ship which at the time of capture was proceeding to an enemy port for the purpose of removing therefrom non-combatant refugees of enemy nationality. The Hanametal was an American-owned merchant vessel flying the American flag and which, when captured by a British war ship, was on a voyage from Shanghai to Tsingtau with a view to transporting from the latter place a number of German noncombatants. The Crown asked for condemnation of the vessel on the ground that it was proceeding to an enemy port which was liable to be and which was, in fact, subsequently blockaded and that the taking away from such places of a large number of the non-combatant population constituted unneutral service if not actual assistance to the enemy. Oppenheim and Hall* were quoted as authority for the proposition that besieging commanders are under no obligation to allow non-combatants to leave besieged places, that in fact they rarely do so because the presence of non-combatants may be a means of insuring an earlier capitulation and that a neutral who assists in the removal of such persons in advance of a siege or blockade renders aid to the one belligerent and injures the other.

Counsel for the claimants, on the other hand, pointed out that the contention of the Crown, if pushed to its logical conclusion, would mean that after the outbreak of war no neutral vessel could transport any passengers from a belligerent port because the port might at some future time be blockaded.

Judge Gompertz, acting chief justice of the Court, rejected the contention of the Crown and denied that either of the text books relied upon, or any reported cases, supported the proposition that the transportation by a neutral ship of non-combatants from a belligerent port constituted unneutral service. The im

See the cases of Piepenbrink, of Garde and others and the seizures on the China, discussed in my International Law and the World War, Vol. II, pp. 362-367. I Br. & Col. Pr. Cas. 347. See also Sec. 189, supra. 3 International Law, Vol. II (2d ed.), p. 193.

* International Law (6th ed.), p. 678.

plication from Article 45 of the Declaration of London which provides for the condemnation of neutral vessels engaged in the transportation of persons embodied in the armed forces of a belligerent, was, he said, that the transportation of non-combatant enemy subjects or of neutrals from an unblockaded enemy port was innocent and unobjectionable. Not every service, he added, which may be beneficial to the enemy is necessarily forbidden to a neutral, for example the transportation of medical supplies to an unblockaded enemy port. He also pointed out that the Hanametal had not been engaged by the German government to remove the refugees from Tsingtau; it was a purely neutral undertaking and not inconsistent with the obligations and duties of neutrality.

Among the contentions put forward by the Crown was that the vessel had been under the orders and control of the German government and therefore by the terms of Article 46 of the Declaration of London she was liable to condemnation. It is true that upon arrival at Tsingtau all the European officers aboard (except one), three of whom were British, were replaced by Germans, as no officers of a neutral power could be found and the German authorities would not permit British officers to navigate the vessel through the channel, which was mined. After an examination of the evidence, Judge Gompertz came to the conclusion that the German master was not put on board as agent of the German government and that he acted from first to last in the interests of the neutral owner who never surrendered the control of his vessel to the German government. Finally, the Crown argued that the voyages of the Hanametal between Chefoo and Tsingtau which took her very near to Wei-hai Wei, the British naval station used by the British China squadron, were undertaken to gather and convey information to the enemy as to the movements of British war ships and therefore under Article 45 of the Declaration of London she was liable to condemnation. As to this contention the Judge pointed out that at the time the Hanametal left Shanghai for Tsingtau the railroad and the telegraph line between the two places were in working order and that if the enemy authorities at the latter place had desired to procure information from Shanghai it could have obtained it by a more expeditious channel than the sea route. His conclusion was that the only direct evidence available showed that the vessel was proceeding on a trading voyage which in itself was perfectly lawful. There may have been room, he said,

for suspicion that the voyage was not entirely innocent; but suspicion was not sufficient to justify condemnation. There must be direct evidence of a positive breach of neutrality and as this was the case of a neutral vessel the burden of producing it was upon the Crown. This had not been done and the vessel must therefore be released.1

'Compare in this connection the Paklat, discussed in Sec. 189, supra.

CHAPTER XV

BLOCKADE

I

REGULAR BLOCKADES

Sec. 451. Importance of Blockade During the World War. In consequence of the fact that all the important maritime States were participants in the late war, blockade, like the measures for the interception of contraband, played an important rôle. It is somewhat singular, however, that Great Britain and France, the two principal belligerents on the one side, did not have recourse to blockade measures against Germany, the principal belligerent on the other side, until after the war had been in progress for some seven months. Until then they contented themselves, in the main, with the employment of their power to prevent contraband goods from going to their chief adversary. Since the category of contraband was extended to embrace nearly all commodities which were capable of serving either the civil or military necessities of the enemy the measures adopted to intercept the transportation of such commodities to enemy country accomplished in large measure the same object for which recourse to blockade is had.

Sec. 452. Departures from the Existing Rules and Practice. When recourse to blockade came to be adopted it took two forms: First, the regular form customarily followed by belligerents in the past and, in the main, applied in accordance with the established rules of international law governing the exercise of the right of blockade; and, second, blockade applied as a measure of reprisal and under a form not in accord with the law or practice of the past. The blockade of Greece, at the time a neutral power, by Great Britain and France for the purposes of coercion may be mentioned as a third exceptional form.

At the outset, all the belligerent powers manifested a disposition to exercise the right of blockade in accordance with the