XXXII step was justified by the Foreign Office on the ground that so large CHAP. a proportion of the inhabitants of the enemy country were taking part, directly or indirectly, in the war that no real distinction could be drawn between the armed forces and the civilian population. Moreover, the fact that the German Government had taken over the distribution of articles on the list of conditional contraband made the distinction between the two classes meaningless.1 2 of neutral Reference has already been made to the new practice intro- Rationing duced of "rationing" neutral states. As previously applied, the countries doctrine of continuous voyage did not condemn goods which were destined to be sold in the open market of the neutral port. Yet it became clear that it was one and the same to the enemy whether the goods he desired were obtained directly from the original shipper or indirectly through neutral consignees. Again, the larger the volume of food-stuffs and other supplies neutral merchants could import, the larger the quantity of domestic produce that could be spared for overland shipment to the enemy. In consequence Great Britain undertook to determine the reasonable needs of the neutral countries and to hold that imports in excess of such amount must be presumed to reach Germany by the method of substitution. The result was that what was in effect a complete blockade of Germany was established. It was done, however, not by application of the rules governing blockade, but by an extended operation of the doctrines of contraband.3 The penalty for carriage of contraband, according to AngloAmerican practice, has been the confiscation of the contraband goods, together with the vessel carrying them when the latter belonged to the owner of the goods or when the owners were aware of the use to which the vessel was being put. Non-contraband goods belonging to the owner of the contraband goods were likewise condemned. In general non-contraband goods were, by a more mitigated practice" of later times, not confiscated, but merely held subject to a belligerent right of preëmption, particularly in the case where they were the produce of the neutral country." Compare on this point, E. M. Borchard, "The Resurrection of International Law, ," Proceedings, Am. Society of Int. Law, 1923, 61-66. See the case of the Peterhoff, 5 Wallace, 25 (1866). Above, p. 545. See the Neutralitet, 3 C. Rob., 295 (1801). Evans, Cases, 686. Also Carrington v. Merchants' Insurance Co., 8 Peters, 495 (1834). Scott, Cases, 975; Evans, 689. The Haabet, 2 C. Rob., 174 (1800). Scott, Cases, 968; Evans, 687. d. Penalty for carriage of con traband CHAP. XXXII e. Unneutral service The Declaration of London adopted a compromise rule, confiscating the vessel when the contraband goods formed more than half the cargo, as well as other goods belonging to the owner of the contraband. During the World War Great Britain sought to reconcile neutral shippers to her various extensions of the law of contraband by providing for the preemption of vessels and cargoes, other than absolute contraband, instead of their confiscation.2 3 5 More or less analogous to the offense of carrying contraband is the act of a neutral vessel which transports enemy troops or despatches or which engages in the service of the enemy. By customary law such a vessel is subject to confiscation by reason of the business in which it is engaged, irrespective of its destination. In the case of the Atalanta a Bremen ship and cargo were condemned because the vessel was captured when secretly conveying a packet containing despatches for the government of the Isle of France to the minister of marine at Paris. In the case of the Friendship an American vessel was condemned for having, under contract with the French Government, undertaken to transport French military officers and marines. A similar decision was rendered in the case of the Orozembo where only a small number of officers were being conveyed. The classic incident is that of the British mail-steamer Trent, which was stopped on its way from Havana to St. Thomas by an American cruiser in 1861 and two of its passengers, Mason and Slidell, Confederate commissioners to Great Britain and France, forcibly removed. The United States claimed that as despatches were clearly contraband "the bearers or couriers who undertook to carry them fall under the same condemnation," whereas Great Britain held that the character and office of the persons captured did not make them contraband. In consequence, however, of the act of the American captain in removing the commissioners from the vessel, rather than bringing the vessel before a prize-court, the United States complied with the demand of Great Britain and released the prisoners." Art. 40, 42. For the effect of ignorance of hostilities and the provision for delivery of contraband goods at sea, see Art. 43, 44. 'See Phillipson, International Law and the Great War, 388. For the ques tion of the ownership of goods in transit, see The Sally, 3 C. Rob., 300, n., and The Miramichi, L. R. [1916] Prob. Div., 71. Scott, Cases, 811, 819; Evans, 539, 554. 6 C. Rob., 440 (1880). 6 C. Rob., 420 (1807). $6 C. Rob., 430 (1807). Scott, Cases, 867; Evans, 640. Stowell and Munro, Cases, II, 447. For further details of this important incident, see Moore, Digest, VII, § 1265. XXXII The Declaration of London adopted the position that while the CHAP. mere carriage of persons belonging to the armed forces of the enemy afforded no ground for capture of the vessel, such individuals could be removed from the neutral vessel and made prisoners of war.1 If, however, the vessel was undertaking a voyage for the express purpose of transporting individual passengers embodied in the armed forces of the enemy, or if it was, with knowledge, transporting a military detachment of the enemy, it was liable to condemnation.2 The more serious offense of hiring itself out to the enemy placed the neutral vessel in the class of a merchant vessel of the enemy. In the case of the Manouba, a French steamer was taken into port by an Italian cruiser in 1912 and made to surrender a number of passengers of Turkish nationality. The Hague Court of Arbitration, to which the case was referred, decided that there was sufficient ground for believing that the passengers were members of the Turkish armed forces to warrant the demand for their surrender.3 4 Reservists during the During the World War the status of reservists gave rise to a number of controversies. In October, 1914, the Spanish steamship World War Federico was captured and confiscated by the French for having undertaken to transport from Barcelona to Genoa German and Austro-Hungarian passengers the majority of whom belonged by their ages to the classes mobilized by their governments. In November, 1914, a citizen of German birth, Piepenbrink, a steward on board an American steamer, was removed by a French cruiser and held prisoner. The United States demanded his release on the ground that he had declared his intention to become an American citizen, and claimed further that, irrespective of his citizenship, he was not to be regarded as "embodied in the armed forces of the enemy" as provided by the Declaration of London. Again, the United States protested against the forcible removal in 1915 from the American steamship China of a number of German and other enemy subjects who, it was claimed by the British Government, were agents in the service of the enemy." 5 1756 A special form of unneutral service, now possessing only his- The Rule of torical interest, was responsible for the introduction of the doctrine of continuous voyage. By the Rule of 1756 Great Britain forbade Scott, Hague Court Reports, 341. Stowell and Munro, Cases, II, 453. For a discussion of the general subject, see Garner, op. cit., II 362-374. CHAP. XXXII f. Visit and search Convoy 1 neutral merchants to engage in time of war in the commerce between enemy colonial ports and the mother-country which was closed to them in time of peace. In the leading case of the William, an American vessel had shipped its cargo at La Guaria and had then taken it to Marblehead, Massachusetts, where it was unloaded and then reshipped. Being captured en route to Bilboa, Spain, the vessel and cargo were condemned on the ground that the voyage from La Guaria to Bilboa, although broken, was in reality one continuous voyage.2 More serious than the offense of a neutral ship which carries enemy despatches or enemy troops is the offense of engaging in the service of the enemy by taking part in hostilities, or by acting under orders of the enemy government or under contract with the enemy government. Such acts, according to the Declaration of London, place the neutral vessel in the class of enemy merchant vessels. 3 An incident to the right of a belligerent state to capture enemy vessels and neutral contraband goods is the right of belligerent warships to visit and search all vessels encountered upon the high seas. Notice of an intention to visit and search is given by firing a blank charge, or, if necessary, a shot across the bows. Resistance to visit and search on the part of neutral vessels, or the attempt to escape by flight, subjects them to the same penalties which are inflicted upon belligerent vessels. Evidence of fraud in the vessel's papers is a ground for seizure irrespective of the character of the cargo. International practice varied before 1909 in respect to the status of a neutral vessel under convoy of public armed ships. Obviously, if the latter were enemy ships, to keep in their company would be equivalent to resistance. What if they were neutral public ships? In the leading case of the Maria a Swedish merchantman, sailing under convoy of a Swedish ship of war, was condemned on the ground of sharing impliedly in the resistance offered by the frigate. On the other hand, continental states held 5 15 C. Rob., 385 (1806). Scott, Cases, 982; Evans, 725. 'See also the cases of the Emanuel, 1 C. Rob., 296 (1799), and the Immanuel, 2 C. Rob., 186 (1799). Scott, Cases, 926, 928. For an analogous case in which a breach of neutrality was made the ground of confiscation, see Darby v. The Brig Erstern, decided by the Federal Court of Appeals of the United States, 2 Dallas, 34. Scott, Cases, 880. Art. 46. See above, p. 511. The customary rule was confirmed by the Declaration of London, Art. 63. 1 C. Rob., 340 (1799). Scott, Cases, 1003; Evans, 535. XXXII in general that neutral merchantmen were exempt from visit and CHAP. search when under convoy of warships of their own nationality. This latter position was taken by the Declaration of London,1 but even in the absence of that agreement the British practice had lost its point, owing to the better observance of neutrality by neutral governments. g. Destruc tion of neutral prizes Is it permissible for a belligerent to destroy neutral vessels which, after visit and search on the high seas, are found to be liable to confiscation? Until the beginning of the twentieth century international practice, while permitting the destruction of enemy vessels, required that captured neutral vessels be brought before a prize court for condemnation, and that if this could not be done they be released. During the Russo-Japanese War the Russian «. navy sank a number of neutral prizes, notably the Knight Commander, a British vessel carrying a cargo of contraband to Japan. Compensation was refused by the Russian Prize Court. At the second Hague Conference, and again at the London Naval Conference, a number of powers supported the position that neutral vessels could be sunk in case of imperative necessity. A com- 2. promise was agreed upon in the Declaration of London, which provided that as a general principle neutral prizes were not to be destroyed, but as an exception they might be destroyed if the act of taking them into port "would involve danger to the warship or to the success of the operations in which she is engaged at the time."5 Further provisions sought to regulate the conditions under which the destruction should be carried out. The wide latitude of judgment left to belligerents by the provisions of the Declaration was, however, generally regarded by commentators as equivalent to giving the belligerent carte blanche to destroy During the World War the few German cruisers roaming at large found it impossible to bring their neutral prizes to port. On January 28, 1915, an American vessel, the William P. Frye, sailing from Seattle to Queenstown with a cargo of wheat, was captured by a German cruiser and sunk at sea. The United States protested on the ground that the destruction of the Frye was in 1 1 Art. 61, 62. 2 See the dicta of the court in the cases of the Dodson, 48, 381 (1815, 1819), both enemy vessels. Hurst and Bray, Russian and Japanese Prize 793. Acteon and the Felicity, 2 Compare U. S. Naval War Code, 1900, Art. L. Also Instructions Governing Maritime Warfare, 1917, No. 96. Cases of destruction during the World War |