bidden by special treaty stipulations, no indemnities were paid to neutrals for the destruction of their vessels.

Furthermore, as stated above, the rule of the Declaration of London that only vessels carrying contraband are liable to condemnation and destruction when the contraband goods constitute at least half the cargo, is incorporated in the German prize code. But this rule, like the others, was generally disregarded. How a submarine commander, whose knowledge of the contents of the ship's cargo is limited to what he sees through the narrow slit of a periscope, can determine the proportion which the contraband goods bears to the entire cargo, it is difficult to see. According to the Declaration of London, (article 49) as well as the German prize code itself (article 32), conditional contraband is not liable to condemnation unless it is destined for the armed forces or the government of the enemy. To justify the destruction of a neutral vessel laden with conditional contraband, therefore, it is not sufficient for a belligerent to show that the vessel is destined to an enemy port; he must show that the goods are intended for the use of the government or armed forces of the enemy, and according to article 34 of the Declaration of London, such use may be presumed only when they are consigned to the public authorities or a government contractor, to an enemy fortified place, or to a place serving as a base for the armed forces of the enemy. In short, the right of condemnation because of mere enemy destination applies only to absolute contraband. As Professor John Bassett Moore justly remarks:

"When publicists have spoken of the presence of contraband as justifying or excusing the destruction of a neutral ship that should not be brought in, they have, no doubt, had in mind cargoes composed of things especially adapted to use in war and confessedly contraband, such as arms and ammunition, and cannot be assumed to have contemplated the subjection of neutral commerce to general depredation under an extension of the categories of contraband." 1

The German government, however, did not act upon this principle. It recognized no distinction between absolute and conditional contraband, nor did it observe the provisions of its own prize code which distinguishes between the destination of the vessel and the use to which the goods are to be put. It 1 Digest of International Law, Vol. VII, p. 527.

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destroyed neutral vessels laden with conditional contraband equally with those carrying absolute contraband. It treated all towns on the English coasts as "fortified places" or as places serving as "bases" of supplies for the armed forces of the enemy, and consequently vessels laden with conditional or absolute contraband bound to any English port were, whenever possible, sunk. In consequence of the very wide extension of the list of contraband articles - an extension so wide as to amount almost to the assimilation of all goods to the category of contraband - practically all neutral vessels trading with the countries at war with Germany were liable to destruction by German submarines, and many hundreds of them were in fact destroyed.

§ 493. Conclusion. The record of German depredations upon neutral commerce during the late war was, of course, without precedent in the history of modern warfare. It resulted in the destruction of a large part of the merchant marines of some of the small States of Europe or in the paralysis of their commerce, States which were so circumstanced that they dared not offer resistance or adopt adequate measures for the protection of their rights. It is hard to reconcile such a policy of depredation and destruction with the contention of the German government that it was fighting for the freedom of the seas, a freedom which, we are told, had been destroyed by Great Britain. In fact, Germany's record formed a striking contrast to that of Great Britain, for there appears to have been no instance in which a neutral ship was intentionally destroyed during the recent war by the British navy, and it has been stated by the British admiralty that not a single noncombatant life was ever lost on the high seas through the action of the British naval forces.1

Nevertheless, the very general character of the language of the Declaration of London in respect to the destruction of

1 In view of German practice in respect to the sinking of neutral vessels it is interesting to note the view of Treitschke, who went to the length of denouncing Great Britain as the "unblushing representative of barbarism in international law" and of asserting that the right of a belligerent to capture enemy ships on the high seas was “an organized form of piracy." Deutsche Kämpfe, Vol. II, p. 362, quoted by Schmitt in his England and Germany, p. 161. If it is “organized piracy” and "privileged robbery" to capture enemy ships, what must be said of the sinking of neutral vessels?

neutral prizes undoubtedly leaves belligerents a very wide latitude, so that it is possible to turn the exception into the rule without a literal violation of the Declaration. With Germany's ports blockaded and her naval operations limited to those carried on by submarines, she could reasonably claim that whenever a prize was captured at sea, the taking of it in would have involved grave danger to the submarine, even if it had been possible for such craft to conduct it into a home port. German naval commanders were practically in the same situation as the Confederate naval commanders were during the American Civil war. Their home ports were blockaded, and neutral ports were not open to the reception of their prizes; they were obliged, therefore, to allow them to go free or destroy them. But in the recent war the Germans did what no Confederate naval commander ever assumed to do; they destroyed not only enemy prizes, but also hundreds of neutral vessels carrying contraband, this with little or no regard to whether the goods consisted of munitions of war or food-stuffs, usually without satisfying themselves as to the true nationality of the ship or the character of the cargo, and often without making any provision for the safety of the crew or passengers. If the existing rules of international law are susceptible of an interpretation which permits a belligerent to depredate upon neutral commerce in this fashion, they should be speedily altered. It is not to be assumed that it was the intention of the International Naval Conference to authorize general destruction by belligerents of neutral vessels carrying food-stuffs and other articles of conditional contraband, but the failure to specify precisely the contingencies under which a vessel may be sunk has had the effect of making each belligerent the judge of the conditions under which destruction is allowable. If this principle be admitted, the rights of neutral commerce must henceforth be at the mercy of belligerent naval commanders; they will be free to destroy any neutral vessel carrying goods which they may find inconvenient to take in for adjudication by a prize court.1

1 Sir Graham Bower, a retired British naval commander, in the Contemporary Review for November, 1918, makes the suggestion that the right to destroy neutral merchant vessels be absolutely prohibited; that in return for this, the right to arm neutral vessels be abandoned, and that prizes which cannot be taken in by the captor to a home port may be interned in a neutral port. Somewhat similar

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§ 494. Status of Neutral Property Destroyed on Enemy Merchantmen. In many instances enemy merchant vessels sunk by German submarines during the late war carried cargoes owned wholly or in part by persons of neutral nationality. Was Germany bound to compensate the owners of such property? In the case of the Glitra, a British merchantman carrying a cargo a part of which was Norwegian-owned, and which was sunk by a German submarine on October 20, 1914, the supreme prize court of the Empire declined to award compensation to the claimants.1 In the case of the Indian Prince, a British vessel carrying a cargo owned by the nationals of various neutral States, the German prize court reached the same decision.2

The claimants relied mainly on article 3 of the Declaration of Paris, which declares that neutral property on enemy ships, contraband excepted, is exempt from capture. Being immune from capture, the belligerent destroying it is bound to make compensation to the owners. No decision had been reached by the London Naval Conference in regard to the obligation of belligerents to make compensation in such cases, but it was argued by the claimants that article 114 of the German prize code contemplated that compensation should be made. The German prize court, however, held that the obligation applied only to goods on neutral vessels, and that neutral owners of property on enemy ships destroyed as an act of war had no just claim to compensation. As to article 3 of the Declaration of Paris, that was intended to protect neutral property in enemy ships "which under the prize law as it existed prior to the Declaration were subject to capture.' A naval commander, it was

suggestions were made by the British sailors' and firemen's union. But manifestly, to condition the immunity of neutral merchant vessels upon their abstention from carrying arms for purposes of defence involves a recognition of the preponderance of belligerent interest over that of neutrals. Would it not be more in accord with the rights of neutrals, to say nothing of the dictates of humanity, to observe strictly the existing rules which allow the destruction of neutral vessels under exceptional circumstances and permit such vessels to carry armament as in the past for the purpose of defence against unlawful attack? Cf. the comment of Scott in the Amer. Jour. of Int. Law, 12:371 ff.; and the memoranda of Sir John MacDonell and Sir Erle Richards in Grotius Society, Problems of the War, vol. iv, pp. xliv-xlviii.

1 Text of the decision in the Zeitschrift für Völkerrecht, Bd. IX, pp. 399 ff. Eng. trans. in Amer. Jour. of Int. Law, Vol. X, p. 921. See also Grotius, Annuaire, 1917, pp. 70 ff.

2 Eng. text of the decision in Amer. Jour. of Int. Law, Vol. X, p. 930.

said, is not bound to refrain from sinking a vessel which he has a legal right to destroy, merely because it would entail the destruction of neutral property. A neutral who intrusts his property to an enemy vessel which is liable to destruction takes a risk, and if he suffers loss, he is not entitled to compensation. This doctrine does not appear to be in accord either with the German prize code or the generally recognized law of nations. An examination of articles 112, 113, and 115 of the prize code would seem to leave little doubt that it was the intention of the authors to recognize an obligation to make compensation for property destroyed on enemy as well as neutral vessels, and this intent is strengthened by the attitude of German text writers 1 and by the German delegation at the London Naval Conference.2 It would seem to be a sound principle that if the destruction of an enemy merchant vessel is required by urgent military necessity, as the French claimed to have been the case when they sank the Ludwig, and the Vorwaerts in the Seine in 1871, there is no obligation to compensate neutrals for the losses which they may incidentally sustain in consequence of such destruction. But where merchant vessels of the enemy are systematically destroyed as a general practice of maritime war, and not in exceptional cases required by extraordinary military necessity, a failure to compensate owners of neutral property thereon is a clear violation of article 3 of the Declaration of Paris. This principle is as old as the Consolato del Mare, and it has been affirmed by text writers almost without exception.

1 For example, by Perels, Das Int. Öff. Seerecht der Gegenwart, 2d ed., p. 299. See their memorandum, House of Commons Sessional Papers, 1909, Misc., No. 5, p. 99.

See a learned discussion of the subject by Quincy Wright in Amer. Jour. of Int. Law, Vol. XI, p. 377.