enemy's vessel, favours the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the Neutral has a perfect right to avail himself of the vessel of his friend to Bynker transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of this right." shoek. Freight payable to neutral ship owners. § 80. The Common Law of Nations, which declares the property of an enemy found on the High Seas in the vessel of a friend to be good prize of war, provides at the same time that the friendly shipowner shall not suffer any prejudice by reason of a belligerent doing justice to himself by confiscating the property of his enemy. If a friendly shipowner is simply the carrier of enemy's property on the High Seas, and does not seek in any way to evade or baffle enquiry on the part of a belligerent cruiser with a view to screen the cargo from capture, his conduct is not inconsistent with neutrality; and reason suggests that the neutral carrier, in case the cargo should be confiscated by the belligerent, should not incur any loss by reason of the voyage, which was in its inception perfectly innocent, being prematurely terminated in the interest of the belligerent. If a belligerent cruiser accordingly arrests the voyage of a neutral merchant vessel on the High Seas, and claims to have the cargo, as being the property of an enemy, delivered up to him or carried into port, as the case may be, the belligerent is bound to pay the neutral shipowner an adequate freight for the carriage of the cargo. The belligerent has no cause 32 Quæstiones Juris Publici, in navi amica repertas, id enim capio quod hostis est, quodque jure belli victori cadit. Kent's Commentaries, Tom. I. p. 128. freight. of grievance against the neutral shipowner as long as the conduct of the latter is perfectly impartial : under such circumstances his rights, as a belligerent, are solely against his enemy; and if he takes possession of his enemy's property jure belli, he takes it under no better conditions than those under which the enemy can himself claim it, namely, with the lien of the freight upon it. A distinction however has been so far made in favour of the belligerent, that he is not burdened with an unreasonable præmium upon a voyage evidently hazardous, although such præmium may not have been inequitable as between the enemy-shipper and the neutral shipowner. Considerations of various kinds may have Measure of influenced the parties to the contract of affreightment, and may have rendered a contract for an advanced rate of freight real and fair between those parties; but the freight, as a burden upon the belligerent captors, does not come loaded with those considerations. The captor is bound indeed to pay an adequate remuneration for the carriage of the cargo of which he has taken possession by virtue of the right, which a state of war confers upon him, as against his enemy; but the charter-party is not the measure by which the captor is always bound, even where its terms are not colourable nor liable to any imputation of fraud. For instance, the trade may be subject to extraordinary risk and hazard from its connection with the events of war and the activity and success of the belligerent cruisers; and it would be unreasonable for the captor to be called upon to make good an undertaking to pay an extraordinary premium, the specific purpose of which was to encourage the neutral shipowner to use his best efforts to defeat the captor's vigilance. The rate of freight given for the carriage of similar goods under sionary De Witt. ordinary circumstances is the standard, by which the liabilities of the belligerent captor towards the neutral shipowner are to be measured 33. § 81. The Conventional Law of Europe down to the commencement of the seventeenth century seems to have been almost uno tenore confirmatory of the rule of the Consolato del Mare, that enemy's goods found on board of a neutral vessel were good prize. Grand Pen- It is to the Grand Pensionary De Witt that the introduction of the principle of the neutral Flag covering the Cargo is due; and the treaty by which that statesman laid the foundation of the novel doctrine of Free Ship, Free Goods, was the Treaty of Paris31, concluded on 18 April 1646, between Holland and France, whereby Louis XIV agreed that for four years Dutch vessels laden with enemy's property, not contraband of war, should with their cargoes be Treaty of exempt from capture. The language of this treaty would seem to support the construction put upon it by De Witt, that it provided for the perfect freedom of the Dutch carrying trade; but De Witt found to his surprise that the French interpreted the Treaty merely to provide for the temporary suspension of the Ordonnance of King Henry III (A. D. 1584), according to which enemy's goods forming part of the cargo of a neutral vessel infected the remainder of the cargo and the vessel itself, and led to the condemnation of both, as good prize. In the course of a few years the Dutch Paris of 1646. 33 Vattel, Droit des Gens. L. III. c. 7. § 115, 116. The Twilling Riget, 5 Robinson, p. 82. 34 Dumont, Traités, Tom. VI. Part I. p. 342. 35 Art. I. En telle sorte que les Navires, qui trafiqueront avec la 35 Patente de l'Amiral des Provinces Uniés. . . . seront libres et rendront aussi toute leur charge libre, bien qu'il est dedans de la Marchandise, même des grains et légumes appartenans aux ennemis, sauf et excepté toutefois les marchandises de contrebande. Treaties. Treaties, obtained the assent of Spain (A. D. 1650) and of Dutch Portugal (A. D. 1661), to the provision that the goods of an enemy found on board of a neutral vessel should be free, whilst the goods of a neutral found on board of an enemy's vessel were to be good prize. In 1662 (27 April) the Dutch succeeded in inducing the French to enter into a Treaty of identical import with the Treaties which they had previously concluded with Spain and with Portugal. England had meanwhile entered into similar engagements with Portugal in 16543, and she conceded the British same privilege to the Dutch in 1667, as the price of an alliance between the States General and England against France. This privilege was renewed in the following year at Breda, and again in the Treaty of Commerce concluded at London in 167437, and the relations between Holland and England continued to be so far exceptional to the Common Law of the Sea down to 1756, when on the refusal of the States General to fulfil certain stipulations of the Treaty of 1678, England declared that she would not recognise any longer this treaty privilege in favour of the Dutch. In 166789 England admitted the principle of Free Ship, Free Goods, into a treaty concluded with Spain, and in 1677 into a treaty concluded with France. The same principle was also recognised in the Treaties of Utrecht (A.D. 1713) as Treaties of between France and Great Britain, France and the United Provinces, Spain and Great Britain, Spain and the United Provinces. Denmark, Sweden, and Russia, had severally entered into special treatyengagements with various Powers prior to the Armed Neutrality of 1780, which comprised amongst 38 36 Dumont, Tom. VI. Part II. p. 84. p. 49. 38 Annual Register, A.D. 1780, 37 lbid. Tom. VIII. Part I. p. 61. Utrecht. Armed Neutrality of 1780. its principles that of Free Ship, Free Goods, but not the correlative principle of Enemy Ship, Enemy Goods. Prussia had, on the other hand, admitted both principles into a treaty concluded with Sweden in 1762, and she acceded to the Armed Neutrality on 8 May 1781. The Roman Emperor of the Germans had likewise admitted both principles into a treaty concluded with Spain in 17259; and he entered into a treaty with Russia on 10 July 1781, which recognised the principle of Free Ship, Free Goods. The King of the Two Sicilies acceded to the Armed Neutrality on 10 Feb. 1783, but the action of the Northern Confederacy was suspended by the General Peace concluded in that year. The convenience of the principle that the neutral Flag covers the Cargo had thus been very generally recognised by the Nations of Europe prior to the war of the first French Revolution; since which event several of the European Powers have entered into treaty-engagements in affirmance of this principle, not merely with various European Powers, but with the United States of America, and with several independent States of the South American Continent. Meanwhile the rule of the Consolato del Mare has been held to constitute the Common law of the Sea, and Nations have acted upon it as such, when no treaty-engagements 40 have bound them to observe a contrary practice. § 82. It would appear from the above survey that there are three distinct systems of law in regard to the exercise of Belligerent Right upon the High Seas, which have found favour from time to time with 39 Dumont, Tom. VIII. Part II. p. 115. 40 A very complete review of the Treaties on the principle of Free Ship, Free Goods, will be found in Manning's Commentaries on the Law of Nations, pp. 224280. |