claimed in the British Prize Court the Anna,1 a Spanish vessel captured by the English privateer Minerva within her neutral maritime belt. Thus, further, in 1864, during the American Civil War, when the Confederate cruiser Florida was captured by the Federal cruiser Wachusett in the neutral Brazilian port of Bahia, Brazil claimed the prize. As the prize had sunk while at anchor in Hampton Roads, she could not be restored; but the United States expiated 2 the violation of neutrality committed by her cruiser by court-martialling the commander, by dismissing her consul at Bahia for having advised the capture, and, finally, by sending a man-ofwar to the spot where the violation of neutrality had taken place for the special purpose of delivering a solemn salute to the Brazilian flag. Many similar cases occurred during the World War. Thus, in July 1916, the British steamer Adams was captured by a German torpedo boat in Swedish territorial waters, and taken to the German port of Swinemunde; Sweden claimed the prize, and Germany apologised, and brought the vessel back to the spot where she had been captured, and set her free. Again, when the German vessels Pellworm 4 and others were captured by British cruisers in July 1917, in Dutch territorial waters, the Dutch Government claimed them in the British Prize Court; similarly, Norway claimed the release of the Dusseldorf 5 and the Valeria, German vessels which had been captured by British forces in Norwegian territorial waters. It is, however, only the neutral State whose neutrality has been violated, and not the owner of the vessel, who can, at any rate according to British practice, successfully prosecute a claim for the release of the vessel before the Prize Court.1 § 363. Apart from intentional violations of neu- Negligence on trality, a neutral can be made responsible only for such that part of acts favouring or damaging a belligerent as he could Neutrals. by due diligence have prevented, and which by culpable negligence he failed to prevent. It is by no means obligatory for a neutral to prevent such acts under all circumstances and conditions. This is in fact impossible, and it becomes more obviously so, the larger a neutral State and the longer its boundary lines. So long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the meaning of the term due diligence has become controversial on account of the definition proffered by the United States of America in interpreting the Three Rules of Washington, and adopted by the Geneva Court of Arbitration.2 According to that interpretation the due diligence of a neutral must be in proportion to the risks to which either belligerent may be exposed from failure to fulfil the obligations of neutrality on his part. Had this interpretation been generally accepted, the most oppressive obligations would have become incumbent upon neutrals. But no such general acceptance has taken place. The fact is that due diligence in International Law can have no other meaning than it has in Municipal Law. It means such diligence as can reasonably be expected when all the circumstances and conditions of the case are taken into consideration. Be that as it may, the Second Hague Conference took a step which excluded for the future the continuation of the controversy regarding the interpretation of due 1 See The Bangor, (1916) 2 B. and C. P. C. 206, and the American cases of The Anne, (1818) 3 Wheaton 435; The Lilla, (1862) 2 Sprague 177; The Sir William Peel, (1866) 2 See above, § 335. Laying of Submarine Contact diligence, for Articles 8 and 25 of Convention XIII., instead of stipulating due diligence on the part of neutrals, stipulated the employment of the means at their disposal. §363a. In order to defend themselves against possible violations of their neutral territory, neutrals may lay Mines by automatic contact mines off their coasts. If they do Neutrals. this, they must, according to Article 4 of Convention VIII., observe the same rules and take the same precautions as are imposed upon belligerents.1 Moreover, they must, according to paragraph 2 of Article 4 of Convention VII., give notice in advance to mariners of the place where automatic contact mines have been laid, and this notice must be communicated at once to the Governments through diplomatic channels. Convention VIII. is quite as unsatisfactory in its rules concerning mines laid by neutrals as in its rules concerning mines laid by belligerents, and the danger to neutral shipping created by mines laid by neutrals is very great. However, when Article 4 speaks of the laying of contact mines by neutral Powers off their coasts, without limiting such operations to within the three-mile-wide maritime belt, it does not intend to give neutrals a right to lay them outside the belt.2 For it is expressly stated: 3 Mais il paraîtrait entendu que l'absence de toute disposition fixant les limites dans lesquelles les neutres peuvent placer des mines ne devra pas être interprétée comme établissant, pour les neutres, le droit de placer des mines en pleine mer.' A neutral, in laying mines within his territorial waters, must have regard to the duty of impartiality incumbent upon him, and must consider whether his mine-field favours one belligerent at the expense of 1 See above, § 182a. As was erroneously stated in the second edition of this work. 3 See Deuxième Conférence, Actes, iii. p. 456. See also Article 6 of the "Réglementation internationale de l'Usage des Mines sous-marines et des Torpilles' of the Institute of International Law (Annuaire, xxiv. (1911), p. 302). another. On July 14, 1916, during the World War, Sweden declared that the Kogrund Channel, leading to the Baltic Sea, was to be closed by mines, and that only Swedish shipping might pass through it. The channel was within Swedish territorial waters. The effect of this action was to force Allied ships entering or leaving the Baltic to pass through the outer channels, which were closely patrolled by German warships. Thus while German ships had access to both the east and west coasts of Sweden, Russia was confined to the east coast and the other Allied Powers to the west, Sweden having completed the German barrier between them. The Allied Powers protested. IX RIGHT OF ANGARY Grotius, iii. c. 17, § 1 (see also ii. c. 2, §§ 6-9)-Vattel, ii. § 121-Hall, § 278 -Lawrence, § 233-Westlake, ii. pp. 131-134-Phillimore, iii. § 29— Halleck, i. p. 519-Taylor, § 641–Walker, § 69—Bluntschli, § 795a— Heffter, § 150-Bulmerincq in Holtzendorff, iv. pp. 98-103-Geffcken in Holtzendorff, iv. pp. 771-773-Ullmann, § 192-Bonfils, No. 1490Despagnet, No. 494-Mérignhac, iii“. pp. 586-591-Rivier, ii. pp. 327329-Kleen, ii. §§ 165, 230-Perels, § 40-Hautefeuille, iii. pp. 416426-Holland, War, Nos. 139-140-Land Warfare, §§ 507-510—Albrecht, Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen (1912), pp. 24-66—Wehberg, p. 70—Borchard, § 104-Garner, i. §§ 118-119. Original § 364. Under the term jus angariae,1 belligerents who The had not sufficient vessels often claimed and practised Right of in former times the right to lay an embargo on, and Angary. seize, neutral merchantmen in their harbours, and to compel them and their crews to transport troops, munitions, and provisions to certain places on payment The term angaria, which in mediæval Latin means post-station, is a derivation from the Greek term ayyapos for messenger. Jus angariae of freight in advance.1 This practice arose in the Middle Ages, and was much resorted to by Louis XIV. of France. To save the vessels of their subjects from seizure under this right of angary, States began in the seventeenth century to conclude treaties under which each renounced the right with regard to the vessels of the other. And so the right fell into disuse during the eighteenth century, and there is no case in which it is reported to have been exercised during the nineteenth century. Nevertheless, many writers 3 assert that it is not obsolete, and might be exercised even in this twentieth century. They do this because, even during the nineteenth century, some States concluded treaties 4 containing articles which provided for compensation in case this right of angary should be exercised by one of the contracting parties. On the other hand, there is evidence that the right is contested. A number of writers 5 object to it. Article 39 of the 'Règlement sur le Régime légal des Navires dans les Ports étrangers adopted by the Institute of International Law rejects it: Le droit d'angarie est supprimé. . . .' The King's Regulations and Admiralty Instructions of 1908 (No. 494) contain the following rules under the heading, 'Coercion of a British ship': 'If any British merchant ship, the nationality of which is unquestioned, should be coerced into the conveyance of troops or into taking part in other hostile acts, the Senior Naval Officer, should there be no diplomatic or consular authority at the place, is to remonstrate with the local authorities and take such other steps to assure her release or exemp 6 |